Court of Protection Q&A

Court of Protection Q&A

Alexandra Laity, a Legal Assistant in our Court of Protection team, has answered a few questions about what the Court of Protection is and what Deputies can do to help those who lack mental capacity.

1. What is the Court of Protection?

The Court of Protection is a Court in England and Wales that is dedicated to issues relating to people who lack the mental capacity to make the relevant decision at the time a decision needs to be made.

The Court can make one off decisions or appoint a Deputy to make a series of decisions in relation to property and financial affairs, or health and welfare. Property and financial affairs deputies are more common than personal welfare deputies. The Court of Protection can also revoke Powers of Attorney which are invalid or where the attorney has not been acting properly. However, it is the Office of the Public Guardian which supervises deputies and attorneys.

2. What causes a lack of mental capacity?

A lack of mental capacity could be due to:

  • a brain injury
  • a mental health problem
  • dementia
  • a learning disability
  • confusion, drowsiness or unconsciousness because of an illness or the treatment for it
  • substance or alcohol misuse.

3. What can a Deputy do?

This will depend on the application you make. There are two types of deputy.

Property and financial affairs deputy

Under a property and affairs order, you as the appointed deputy can take control of your loved one’s financial affairs. You can access their bank account, pay their bills, organise their pension, pay off their debts, and apply for benefits that they may be entitled to etc. You can request authority to sell their property if they are in residential or nursing care and their care fees need to be paid.

Personal welfare deputy

You’ll make decisions about medical treatment and how someone is looked after. These appointments are much less common than property and affairs deputyships. However, we are waiting for judgment in a recent court case which aimed to make it easier for personal welfare deputies to be appointed.

4. Who can apply to act as a Deputy?

You can apply to be a deputy if you are 18 or over. Deputies are usually close relatives or friends of the person who needs help making decisions. If you want to become a property and affairs deputy, you need to have the skills to make financial decisions for someone else. The court can appoint two or more deputies for the same person.

5. What if there’s more than one person wanting to act as Deputy?

When you apply, tell the court how you’ll make decisions if you’re not the only deputy.

It will be either:

  • together (‘joint deputyship’), which means all the deputies have to agree on the decision
  • separately or together (‘jointly and severally’), which means deputies can make decisions on their own or with other deputies

6. Who else can act as Deputy?

The Deputy is usually a close friend or relative but if there is no-one willing or able to act or in cases where there is a large amount of compensation a professional (usually a solicitor) will be appointed. Solicitors or representatives of the Local Authority will charge for their services. The Court of Protection appoints a Panel Deputy where there is no one available to act. Samantha Buckthought of Wolferstans is one of only a few Panel Deputies recognised for their skill and expertise in this area.

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