Court of Protection Solicitors

Get expert and sensitive advice on any issues relating to the Court of Protection and capacity issues

Helping clients suffering from a loss of mental capacity requires specialist assistance. Our Court of Protection solicitors are on hand to provide expert and sensitive advice.

In an ideal world, our clients will have planned for the future by drafting a Will and (in case they should ever lose mental capacity) Lasting Powers of Attorney.

Lasting Powers of Attorney (LPAs) are signed documents giving someone you trust the legal authority to manage your finances and property and/or make health and welfare decisions for you if you develop a mental or physical condition that prevents you from doing this for yourself.

There are cases however, where this is not possible for instance because a person was born without capacity, suffered an injury resulting in mental impairment or just left it too late after a diagnosis of dementia. In these circumstances it can be very difficult for family or advisers to look after the financial or personal welfare of the client (known in this context as the protected party) as the law does not automatically give them any authority to do so. The only way in which they can obtain this authority is by making an application to the Court of Protection for an order appointing them Deputy.

What is the Court of Protection?

The Court of Protection is a court that makes decisions about financial and welfare matters for people who cannot make decisions at the time they need to be made and where there is nobody else who can legally make those decisions for them. The Court of Protection safeguards the rights of and empowers vulnerable people who are considered to lack mental capacity.

The court has the authority to appoint a Deputy to make financial or welfare decisions for someone if they are unable to make those decisions for themselves and the Deputy must act in accordance with the provisions of the Mental Capacity Act 2005.

The Court has the authority to appoint a Deputy to make financial or welfare decisions for someone if they are unable to make those decisions for themselves and the Deputy must act in accordance with the provisions of the Mental Capacity Act 2005.

The powers of a Deputy

A Deputy appointed by the Court of Protection may be appointed to make decisions about:

Property and financial affairs — this includes making sure the protected party is receiving all the funding and benefits he or she is entitled to.
Health and welfare (less common) — which might include decisions about living arrangements, contact with other people, and medical treatment choices.

The Deputy must be appointed by and can only act under an Order from the Court of Protection and the Order sets out the scope of the appointed Deputy’s authority. In addition, the Deputy must work within the rules set out in the Mental Capacity Act 2005 and the Code of Practice that accompanies this Act and there is an overriding duty to act in the best interests of the protected party at all times.

It is important to remember that before a Deputy can make a decision on behalf of the protected party, he or she must be given all the help needed to make the particular decision for themselves (if possible). A person cannot be treated as lacking capacity just because he or she makes a choice that other people think is unwise.

Once a general order has been made by the Court the Deputy will have to make further applications, for instance if they want to sell a house owned by the protected party, make certain investments or engage in tax planning. Court applications can be a lengthy process so the appointed Deputy is advised to plan ahead any actions they are likely to have to take.

Appointment of a Deputy

If someone has not made a Lasting Power of Attorney and they are assessed as no longer having capacity to make a decision or decisions for themselves, a Deputy will be appointed. This is common for people with dementia, for instance.

Deputies are more commonly appointed by the Court of Protection to make property and financial decisions (a Property and Affairs Deputy). The Deputy will ensure that they are receiving all eligible benefits, pay any care home charges, deal with property matters and all other financial and property matters within the scope of authority provided under the Order.

A family member could be appointed or the court may appoint someone from its panel of Professional Deputies.

Who can be a Deputy?

Anyone can be considered by the Court of Protection as a Deputy. A relative, friend, neighbour, or professional representative such as a solicitor, trust company or local authority officers could be appointed. In complex cases, particularly those involving large awards of damages, the Court may prefer to appoint a professional Deputy, in some cases from its panel of Professional Deputies.

How is a Deputy supervised?

The Public Guardian is responsible for the supervision of Deputies. The Court of Protection sets the level of supervision.

The Deputy must account annually to the Office of the Public Guardian and may be called upon at any time to explain his or her actions. Once a general Deputyship order is made it will be necessary to go back to the Court for specific approval if for example, the Deputy needs to sell a house or engage in tax planning.

How does a Deputy establish a lack of capacity?

The Court of Protection requires a medical certificate (COP3) to be completed by an expert with relevant medical experience and this forms the basis of most deputy applications. Usually the protected parties will have a GP or consultant doctor who can complete the application but there are other medical professionals who can also provide this service.

Assessing capacity is not something that a Deputy would do personally, and it can be a difficult judgement as capacity can fluctuate over time and does vary between individuals.

How can I avoid the need for Deputyship?

If you have someone you trust implicitly, make Lasting Powers of Attorney in advance and allow the person of your choosing make decisions for you (both financial and welfare/medical).

Can a person without capacity have a Will made?

In some cases, it is possible for a Deputy or Attorney to apply to the Court of Protection for a Statutory Will to be put in place for someone who does not have the capacity to make or change one themselves. Such applications are generally made for tax planning reasons or because the protected party’s existing Will is so out of date that it no longer reflects their known wishes. It is a complicated process and can be lengthy unless all persons affected by the changes agree and this is a good example of why advice from specialists is essential when dealing with the Court of Protection.

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