Court of Protection Applications

The Court of Protection is a Court that was created under the Mental Capacity Act 2005. It has jurisdiction over the property, financial affairs and personal welfare of those who lack mental capacity to make decisions for themselves.

The Court can become involved in someone’s affairs for a number of reasons – they may need to appoint a deputy, make a one-off decision, deal with a dispute that has arisen, to deal with mattes arising from Lasting or Enduring Powers of Attorney, or to consider a Statutory Will application.

An application to the Court of Protection is often needed where the person lacking capacity did not prepare Lasting Powers of Attorney (or an Enduring Power of Attorney) whilst they had capacity, or because they never had the required capacity to do so. It is possible for the Court to become involved even where these do exist, perhaps because there is a disagreement, or the documents are defective in some way.

What Is A Deputyship Application?

A deputyship application can be made to the Court of Protection where it is necessary for the Court to appointment someone to make decisions on behalf of someone who lacks mental capacity in relation to their property and financial affairs, or their health and welfare.

The person appointed by the Court is known as the Deputy. It is often a relative or friend of the person who lacks capacity but professional deputies can be appointed.

It is more common for the Court to appoint a Property and Affairs Deputy, but they will from time to time appoint a Health and Welfare Deputy – perhaps if there is a dispute within the family, or between the family and other organisations involved in the person’s care. A good recent example is where the Court of Protection made a ruling concerning the life support treatment for Archie Battersbee.

What Does A Deputy Do?

Once appointed, the Deputy is the person with the legal authority to make decisions on behalf of the person lacking capacity – and these decisions must always be in the best interests of the person lacking capacity.

The role is similar to that of an Attorney appointed under a Lasting or Enduring Power of Attorney, but it is often more onerous one due to the supervisory requirements of the Office of the Public Guardian – who are the administrative arm of the Court of Protection.

Every year the Deputy must file an Annual Report accounting for how the money has been spent and what decisions have been made during that year.

The sorts of decisions that a Deputy can make depend on whether they are a Property & Affairs Deputy or a Health & Welfare Deputy.

A Property & Affairs Deputy can make all sorts of decisions which might include; buying and selling property, making investments, paying bills, dealing with pensions and claiming benefits.

A Health & Welfare Deputy may need to make decisions relating to medical treatment, the type of care the person is to receive, where they should live and even down to making arrangements in relation to their clothing and food.

What Is Involved In Making a Court Of Protection Application?

An application for a deputyship order is costly and time consuming, as it will most likely take the best part of 12 months to obtain. Though, it is possible for an emergency application to be made, if required.

The process is relatively straightforward, but it is important to seek specialist advice to ensure that the Court order you are asking for includes all of the powers and authorities the Deputy is going to need.

The Court will want to know all about the person’s financial affairs, where they are living, what sort of care they are receiving (if any) and what the future plans are in terms of their accommodation and/or property. The Court also require a mental capacity assessment to be carried out by a suitable qualified professional to confirm that the person does indeed lack the mental capacity to make these decisions for themselves.

If the application is being made on behalf of someone who is going into a care home then the Court will also want to see evidence that a Deprivation of Liberty safeguard is in place.

Who Can Be A Deputy?

Anyone who is aged 18 or over and has mental capacity themselves.

It needs to be someone who is trustworthy and has the capacity to take on such a role.

It is also important that the Deputy doesn’t have any criminal convictions and in the case of a Property & Affairs Deputy, that they do not have any personal financial issues such as bankruptcy or judgement debts.

If there is no one already involved in the person’s life i.e. a family member or friend, then it is possible to appoint a Professional Deputy, such as a Solicitor – but there will be costs associated with such an appointment.

What Duties Does The Deputy Have?

The Deputy’s duties are set out in by the Mental Capacity Act 2005 and the Code of Practice – the most important being that they always act in the best interests of the person who lacks mental capacity.

For further information regarding the above or if you would like to discuss a Wills & Probate related query with one of the team, please call us on 0800 011 6666 or e-mail the team at legal@timms-law.com.