Self-help guide
What is the Court of Protection?
The Court of Protection was established by s45(1) of the Mental Capacity Act 2005 (MCA), which came into force in 2007. The court now has jurisdiction over the property, financial affairs, personal health, and welfare of people who lack mental capacity to make these decisions for themselves.
The MCA and the Court of Protection Rules 2007 set out the framework for the operation of the court. Under section 16 of the MCA, the Court can also appoint deputies to make decisions on behalf of the person lacking capacity.
When will the Court of Protection become involved?
The Court of Protection will become involved when a person loses capacity and does not have a power of attorney in place. The Court is able to appoint a deputy for someone who has lost capacity.
The Court can also make orders to give additional powers to an attorney who is dealing with the affairs of a donor under a lasting power of attorney (LPA).
What is a power of attorney?
Power of attorney, often called a lasting (LPA) or enduring power of attorney (EPA) if made before 2007, are legal documents created by a person, also known as the donor, whilst they have mental capacity.
The purpose of an LPA/EPA is to allow the donor to give another person (or multiple people) known as an attorneys the power to make decisions on their behalf if they later lose the mental capacity to make them themselves.
This means that the donor can choose who they would like to help them make decisions if they become unable due to illness/loss of capacity. Many people will put an LPA in place if they are concerned they may develop dementia.
How is a deputyship different from an LPA?
Broadly speaking, both of the above powers give the same authority and powers to act — the key difference is when each option is put in place. Any person who has capacity can put in place a power of attorney, which will come into force should they lose capacity. The advantage of this is that a person can choose who they would like to be their attorney and can even authorise the attorney(s) to help them with financial matters before they lose capacity.
An LPA can only be put in place by someone before they lose capacity. If a person has already lost capacity, they are no longer able to make a decision themselves as to who they would like to appoint as their attorney(s). Similarly, if someone loses capacity quickly or unexpectedly, e.g. due to an accident or a rapid onset of dementia, they can no longer appoint an attorney. In this case, a deputyship is needed. The Court of Protection will appoint an individual to act as deputy for the person who has lost capacity.
It may also be that a person’s attorney(s) pass away, or no longer wish to act as attorney(s). In this case, the attorney(s) can step down and a deputy can be appointed instead.
LPAs and deputyships give similar powers, but deputyships are much more strictly regulated. A deputy has more duties and responsibilities than an attorney, such as submitting formal annual accounts .
Health and welfare decisions
Deputyship is most commonly appointed to make decisions about property and financial affairs only.
It is possible for a health and welfare deputyship to be granted, though this is rare. Most welfare decisions can be made without the need for Court approval and a health and welfare deputyship is generally only required in extremely difficult situations or where a series of linked decisions need to be made.
The reason a health and welfare deputyship is rarely granted is because most decisions relating to this area can be made using the best interests principle. Section 4 of the MCA outlines a checklist which sets out what a decision maker must consider before making a decision for someone who lacks capacity.
For example, a family member, social worker, or medical care team can make decisions without a deputy if they follow the checklist below:
- Consider the wishes and feelings of the person who lacks capacity. This includes any current wishes as well as any that were expressed prior to losing capacity. Consideration needs to also be given to any particular beliefs or values that person has.
- Consider all relevant circumstances, such as the person’s age, whether they would normally make this decision themselves, whether they are likely to recover their capacity in the near future, and who is currently involved in the care or will be in the near future.
- Consider whether the loss of capacity is temporary. If it is likely that the person will regain capacity, it may be that the decision can be put off in the short-term (for example, in episodes of mental illness).
- Support the involvement of the person in making that decision, for example discussing this in the way that is most appropriate to that person (this could be with the use of visual aids, for example).
- Consider views of carers, family, friends, or other people who may have an interest in that person’s welfare. If there is a disagreement about whether a decision is in a person’s best interests, a family member or friend is able to go to the Court to settle the disagreement.
Who can be a deputy?
Anyone over the age of 18 can be a deputy, though often a family member or close friend will take on the role. If there are large sums of money involved, it may be preferable for a professional deputy to be appointed who will be experienced in dealing with such sums.
What does “lacks capacity” mean?
A person can lack capacity to manage their property and finances in several different ways. Someone may lack capacity due to sustaining a brain injury at birth, or they may acquire a brain injury later in life which causes them to lose capacity. Conditions such as dementia can mean that someone becomes very vulnerable in relation to their finances, which can count as lost capacity.
If someone is vulnerable to financial manipulation or lacks sufficient understanding to manage their money, it is likely they will not have capacity. Often someone with dementia will forget to pay their bills or struggle to access banking systems and manage their funds. People who suffer with dementia can be extremely vulnerable to financial scams or manipulation. Having a deputy appointed for them gives them a layer of protection.
It is important to note that acquiring a brain injury alone does not mean that someone lacks capacity. A person may have suffered an injury but retained capacity. Similarly, if someone has suffered an injury which causes them some form of physical disability, for example losing the ability to communicate verbally, it should never be assumed that this person lacks capacity.
A suitably qualified professional will need to formally assess the person and evidence of this will need to be submitted as part of a deputyship application.
What does a deputy do?
A deputy’s role is ever evolving, and the role of a lay deputy (a family member or friend) is very different to that of a professional deputy (normally a solicitor or other professional).
A lay deputy will often be appointed for an elderly relative. Their role will normally consist of making sure any care home fees, rent, utilities, or other living expenses are paid. A deputy is authorised to access and manage that person’s bank accounts and can budget their money accordingly. The deputy must keep records of any decisions they have made and ensure they are acting in that person’s best interests at all times.
The deputy will need to keep bank statements and record their spending of that person’s money, as each year the deputy is required to submit an annual report to the Office of the Public Guardian (OPG). Normally, a lay deputy will be responsible for lower levels of funds or more straightforward deputyships.
In situations where a person has received a large sum of money in compensation for an injury which has caused them to lose capacity, for example an accident at work or in cases of medical negligence, the court often prefers a professional deputy to be appointed. This is simply due to the fact that there will be much more work involved in lifetime financial planning, more complex care needs to manage and fund, short, medium and long-term investment planning, and in many cases management of ongoing therapies.
What is the Office of the Public Guardian?
The OPG is a regulatory body that supervises lay and professional deputies. They ensure that deputies are carrying out all their duties correctly and will investigate any concerns raised about the conduct of a deputy. Anyone can contact the OPG if they are concerned about the conduct of a deputy. There is no formal time limit for raising an issue, but they should be reported quickly.
Examples of deputy conduct which could cause concern are suspected mishandling of funds, sums of money being unaccounted for, the deputy being uncontactable, or not making payments for care or utility bills.
Each year, deputies are required to submit a report to the OPG detailing all decisions they have made and any money they have spent. The OPG can help deputies with any queries they have about their duties and responsibilities.
What is the process for applying to become a deputy?
The process for applying to become a deputy can seem daunting, but a solicitor can help you complete the application. A person who would like to become a deputy must first formally notify at least three people who are connected to the person who lacks capacity that the application is going to be made. These people can either consent to the application, or if they wish to oppose it then the matter will be listed for a court hearing.
The person who is believed to lack capacity must also be notified of the application and given the opportunity to respond. There is a specific form for this called the COP14PADEP. The proposed deputy will fill this form in, then give the completed form to the person who is believed to lack capacity.
This is often done in person, by the person applying or a close family member or friend. A simple conversation setting out what is happening is often sufficient, though visual aids, written confirmation, and any other appropriate measures should be taken to explain in the best way possible for that person.
The person can then complete the final section of this form indicating if they agree to or oppose having a deputy appointed. It may be that the person does not wish to or is unable to respond. In this case, the proposed deputy or person who is notifying the individual can explain what steps they took to notify them, any verbal response given, or if no response was given at all.
Once this is done, an application is completed giving details of the proposed deputy, details of the person who lacks capacity, details of all financial circumstances, and any assets or property held. This will then be sent to the Court of Protection along with evidence of that person’s level of capacity, completed by a suitably qualified professional such as a GP or social worker.
The deputy must also complete a deputy declaration, giving undertakings to the Court to act with integrity and carry out duties to the best of their ability.
How long does the application process take?
Often the application itself can be completed in a few weeks. Once it has been submitted, the Court will consider the application before issuing a deputyship order. The length of time this takes depends on the court — straightforward applications are taking anywhere from 16 weeks up to 12 months.
What happens after a deputyship order is received?
A person will not be authorised to act as a deputy until the deputyship order is received. Once the deputy has received the order appointing them, they can take this to any bank/building society or other financial institution to gain access to that person’s accounts and begin managing their funds. The deputy can also set up new bank accounts or close existing accounts.
It is extremely important for the deputy to keep the person’s funds entirely separate from their own and keep records and receipts for any purchases.
It is also important that a deputy follows any requirements set out in the order. For example, often an order will prohibit the deputy from buying or selling properties without further explicit approval. The deputy must make sure they are acting within the powers given to them by the court.