What is the Court of Protection?
The Court of Protection is a specialist court in England and Wales tasked with making decisions in the best interests of those who lack the mental capacity to make those decisions for themselves.
The decisions we’re talking about are those relating to the person’s health, welfare or financial matters – or a combination of them, depending on their individual needs. For example, the Court can make a decision as to whether an individual should have medical treatment, or permitting a cash sum to be spent for a specific purpose or whether a statutory will should be made.
The Court of Protection also has a vital judicial role, deciding disputes that have arisen relating to an individual who lacks mental capacity.
The Court also appoints deputies to manage someone’s affairs. Deputies are trusted individuals who are given legal authority to make important healthcare or financial decisions for the individual on an ongoing basis.
The Court of Protection’s responsibilities also includes making decisions on:
- Lasting Powers of Attorney and considering objections to the registration of them
- Depriving someone of their liberty under the Mental Capacity Act 205
How we can help
If you’re concerned about a loved one who you believe is unable to make a decision for themselves, get in touch with us for immediate support. Our skilled lawyers understand that your situation may be difficult and distressing. We approach each individual case with empathy and compassion.
In most cases, we will have a detailed discussion with you before advising whether a court application is required to protect your loved one’s interests. This may necessitate an urgent court application where an emergency decision needs to be made. We’re not afraid to act robustly if your loved one’s best interests require it.
We are also experienced in guiding deputies and attorneys as to how they can effectively exercise their decision-making powers on behalf of an individual.
Our skilled team of solicitors will guide you through the issues you’re facing and sensitively advise you what your best next steps might look like.
Who we help
Our Court of Protection lawyers are experienced in helping anyone with responsibility for managing and looking after someone’s affairs. We advise and support:
- Concerned relatives worried about a loved one’s ability to make their own decisions and choices. You may feel uneasy because they are making decisions that are not safe or financially wise.
- Relatives whose loved one has been diagnosed with dementia or Alzheimer’s or has suffered serious injury and cannot make decisions for themselves.
- Deputies and those with authority under a Lasting Power of Attorney to make decisions on behalf of a loved one. You may, for example, be concerned about what decisions to take and how to implement them.
- Deputies and attorneys who feel unable to continue managing a person’s affairs. There are times when having such a responsibility for someone’s welfare becomes too burdensome, whether because of a change in circumstances or because a dispute has arisen.
- Deputies, attorneys and family members involved in disputes concerning a loved one who lacks the capacity to make their own decisions. No one wants to be involved in disputes involving a vulnerable relative who needs family support more than anything. We understand this. Our specialist court of protection lawyers are experienced in advising how best to approach disputes to enable a swift but calm resolution.
Court of Protection Deputy applications
The Court can appoint someone as a deputy for an individual who lacks the capacity to make decisions for themselves. We will discuss the background and your loved one’s situation and needs before advising what should happen. It’s wise to talk to the individual about your concerns and your desire to help them in this way.
There are two types of deputy (your loved one may need a deputy for both):
- Personal welfare – The deputy has the authority to make decisions about the individual’s medical treatment and healthcare and how they are looked after.
- Property and financial affairs – The deputy has the authority to pay bills and deal with other financial matters, such as pensions and benefits.
Assuming you satisfy the legal requirements, we can make an application on your behalf to the Court of Protection. Once we submit the application(s), there is a two-week period for others to object to your appointment. That could, for instance, be a family member or even the individual themselves. If an objection is lodged, a hearing may be necessary.
If no objection is raised, the Court will assess the application and inform us of the next steps which will involve your loved one being personally notified and a deputy bond being put in place.
Assuming the application is approved, you will formally be appointed as deputy and you will then be required to take further administrative steps. We will discuss these steps with you, along with what your role as a deputy means in practice.
Please note that deputyship orders for personal welfare matters are more difficult to obtain and it may be that a specific issue order is more appropriate to resolve the issue at hand.
Acting as a professional Deputy
A sensible option preferred by many families is appointing a professional deputy. A professional deputy is typically a specialist solicitor experienced in Court of Protection work, who is appointed to manage the property and financial affairs of someone who lacks the mental capacity to make their own decisions.
Professional deputies are best placed to manage the affairs of someone in more complex situations and eases the burden on their family and/or close friends. Our specialist team includes experienced professional deputies and attorneys helping many vulnerable clients who need a trusted decision-maker.
It’s less common for a solicitor to be appointed as a personal welfare deputy as this is usually the natural remit of close family.
Support for Deputies or Attorneys
Acting as a deputy or attorney can be an overwhelming responsibility at times, however much you care for the individual, which is partly why professional deputies are so well-placed. For individual deputies, there is help and support available.
Deputies are required to take certain specific steps such as notifying the banks/building societies, pension provider, DWP, HMRC, care home, local authority etc. The deputy may also want to open a separate bank account to deal with the financial matters of their loved one rather than using that persons own bank accounts going forward.
Thankfully, a raft of information is available, including a code of practice that accompanies the Mental Capacity Act 2005. Our specialist team are also on hand to guide and support you.
Making a Statutory Will
Individual who are unable to make certain decisions for themselves, may well not have the capacity to make a will. In this situation, the Court of Protection can make a ‘statutory will’ (or change their existing will).
Statutory wills are a protective measure to ensure the estate passes on death to those the individual would have chosen had they been able to make their own will. A statutory will has the same effect as if the individual made it themselves in the traditional way.
We can ask the Court to make a statutory will if you are a deputy or attorney. However, it’s important to understand that the Court will only make one if it is in the individual’s best interests. As we would be expected to present the proposed will to the Court, we will need full details of your loved one’s financial and family situation so that we can determine who they would want to inherit in the event of their death.
If the Court approves the proposed will, you will be able to sign it on your loved one’s behalf. It will then be legally binding. It is also a requirement that the will be returned to the Court for sealing.
How do I apply to the Court of Protection for a deputyship order?
An application for a deputyship order involves a court fee of £365 per application. If both types of deputyship are required, the fee could be £730 but financial help may be available. If no one objects within two weeks, the Court will then consider your application.
What is the difference between a Lasting Power of Attorney and a deputyship order from the Court of Protection?
A Lasting Power of Attorney is where an individual with mental capacity grants authority to an attorney(s) to manage their affairs after they become mentally incapacitated. The power can also be used before the individual loses their mental capacity. A deputyship order is granted by the Court after the individual becomes unable to make their own decisions.
How long does it take to get a deputyship order from the Court of Protection?
Assuming no one objects to an application for deputyship, it can take around 5-8 months for it to be approved, or longer if more information is needed. We will assist where urgent action is required in the meantime.