What is the Court of Protection?

The Court of Protection is a Court based in London which was created under the Mental Capacity Act 2005 (MCA).

The Court has the authority to make for people who do not have the capacity to make decisions for themselves.  Common reasons for a loss of capacity might be an acquired brain injury, a serious mental health condition or age-related dementia.  Decisions which fall under the scope of the court can be wide ranging but are often talked about as either ‘property and financial affairs’ or ‘health and welfare’ decisions.

The Court can exercise its authority by making an Order about a specific issue, or by delegating authority to make decisions to another person i.e. a deputy.

You might need a specialist Court of Protection lawyer if:

• You are concerned about a loved one’s capacity to manage their affairs;
• You are responsible for managing someone’s financial affairs (as a deputy or because you are appointed as an attorney under a Power of Attorney); or
• You are concerned about the way someone’s affairs are being managed.

What is a deputy?

A deputy is a person or legal entity such as a trust corporation appointed to make decisions on behalf of someone who lacks capacity. That person is known as the protected party. Deputies are generally appointed where the person who lacks capacity has not made a valid Power of Attorney.  They can be family members or close friend, or a professional deputy may be appointed.

Anyone over the age of 18 can be a deputy, provided the Court of Protection considers them an appropriate person to be appointed.

There are occasions when the Court, or indeed family members, will prefer the appointment of a professional.  Examples include those circumstances where there is a significant damages award to administer; where there is disagreement among family members or where the individual does not have any relatives who are able and willing to act.

Given the responsibilities and commitment that the role requires. a decision to apply to be appointed as a deputy for someone should be carefully considered and not entered into lightly. It is an onerous and often difficult role to fulfil.

The application process

If a person lacks capacity (which can be determined by obtaining evidence from a medical professional following an assessment of capacity) the Court can appoint a deputy to manage a person’s property and financial affairs. In most cases, the Court will grant the deputy standard powers encompassing the common or ordinary day to day tasks that are required to administer a person’s estate effectively.

The application process can be lengthy.  Therefore, when there is evidence of incapacity, it is important that the application is made as soon as possible.  Until the Court considers the application and makes an order appointing a deputy, nobody has authority to act on the person’s behalf.

Depending on the circumstances of the application, it may be submitted on paper or by using an online portal. Both processes require the same information to be given to the Court which includes:

• COP1 application form;
• COP1A supporting information for property and financial affairs application;
• COP3 assessment of capacity; and
• COP4 Deputy’s Declaration.

There is an application fee to pay to the Court – this is currently £432.

Once appointed, deputies are supervised by the Office of the Public Guardian (OPG). Every deputy, whether professional or a friend or family member, must account each year to the OPG for the decisions that they are making.

The role of a deputy

The Court of Protection will grant authority to the deputy to relation to their financial affairs or, less commonly, to their health and welfare. In matters relating to a person’s finances, a deputy is usually given wide powers to manage a person’s property and day to day financial affairs and act as the person’s agent, and they are obliged to make decisions that are in the person’s best interests.

The MCA states that to act in a person’s best interests, a deputy must consider whether the person may have capacity to make the decision themselves at some time.  If this is not going to be possible, then in order to reach a decision the deputy must consider the person’s wishes, feelings, beliefs and values, and consult with anyone named by the person, or any carer or other person interested in their welfare.  A deputy can only make decisions which the person is unable to make for themselves.

Once appointed, deputies are supervised by the Office of the Public Guardian (OPG). Every deputy, whether professional or a friend or family member, must account each year to the OPG for the decisions that they are making.

Why have a deputy and when should one be appointed?

When there is medical evidence concluding that an individual lacks capacity to make decisions themselves, they fall within the scope of the Court of Protection. The Court has authority to protect individuals who are vulnerable and who may be open to financial exploitation.

A deputy can (subject to the terms of their Deputyship Order) assist with the following:

• Paying care costs and other expenses;
• Collecting and applying for benefits and pensions, as well as collecting other assets;
• Buying, selling, and adapting property;
• Managing investments;
• Preparing an annual tax return; and
• Applying for authority to execute a Will.

If you would like any further information on the Court of Protection and Deputyship, please contact our Court of Protection team at courtofprotection@ts-p.co.uk