The Court of Protection was created by the Mental Capacity Act 2005. The Court was set up to help those who don’t have the mental capacity to manage their own affairs. It can ‘sit’ at many different levels, from district through to circuit and high court. Its main offices are in London, but it can also have hearings in regional courts around the country.

The court has the authority to make decisions on their behalf regarding the property, financial affairs and personal welfare. It also appoints Deputies to make day-to-day decisions for those lacking capacity and considers one-off applications for complex or contentious cases, usually about personal welfare issues.

The Court of Protection is part of the Family Division of the High Court. It has the same power in relation to health and welfare decisions as the High Court.

The Court of Protection and Office of the Public Guardian (OPG) are often part of the same process; working together, but with separate defined roles. Broadly speaking, the Court makes the decisions and the OPG handles the ongoing administration.

A Lasting Power of Attorney and Court of Protection Deputy are individuals who have been legally appointed to deal with the affairs of a person who lacks mental capacity. An Attorney and a Court Deputy can both make decisions about financial or health matters on a person’s behalf.

However, whilst their responsibilities are similar, the way they are appointed is very different. When someone has lost capacity and doesn’t have the appropriate LPA in place, an application must be made to the Court of Protection to appoint a Deputy to make decisions on their behalf.

The court’s general powers include:

1. deciding whether an action is in a person’s best interests
2. ruling whether a person is being deprived of their liberty
3. confirming or revoking the validity of a lasting or enduring Power of Attorney
4. appointing Deputies

A Deputy is a person appointed by the Court of Protection to make decisions on behalf of someone who has lost or lacks capacity to make decisions for themselves. A Deputy is needed when the person lacking capacity did not or could not make Lasting Powers of Attorney.

Deputies deal with property and financial matters or with personal welfare issues on behalf of the person who lacks capacity.

The Deputy must follow the guidance in the Mental Capacity Act 2005 Code of Practice at all times and only:

1. Make decisions that are in their best interests
2. Make decisions that the patient is unable to make for themselves
3. Make decisions as allowed by the Court
4. Make decisions with a high standard of care

A property and finance Deputy can manage bank accounts, pay the person’s care fees, household bills, etc. The Deputy may also need to buy or sell a property for the person to live in.

A personal welfare Deputy can make decisions about where the person lives, the care they receive and some decisions about medical treatment. However, it is unlikely that the court will give such general authority. It’s more likely to make a specific order on particular issues such as medical procedures and life sustaining treatment.

The Court will need to make sure the person is suitable, however anyone over 18 can be someone’s Deputy provided that they do not have a criminal record or have not been declared bankrupt. Usually the Deputy will have a personal connection to the person who lacks capacity, for example, a family member or close friend. A Deputy can also be a solicitor. A solicitor is usually appointed if there is no suitable family member or friend who could act.

Deputies can act jointly or, jointly and severally. However, the Court does not encourage the appointment of more than three Deputies. A multiplicity of Deputies could lead to unnecessarily high costs and delay. Normally, only one deputy is appointed, especially if it is a solicitor who is qualified and trained to manage a person’s affairs as deputy.

Becoming a Deputy can take up to four to six months. A number of forms (four) must be completed and a professional capacity assessment carried out. Once the Deputyship application is made, the applicant must then notify specific individuals, including the relatives of the person lacking capacity. There’s usually a further two to three-month period before the Deputyship Order is then authorised. In the event that someone on the notification list objects to the Deputyship application, the proceedings become contested. Typically, this can take a number of months to settle.

Currently, the application fee is £385. This must be paid on submission. Some individuals are eligible to pay a reduced fee, or this may be waived entirely, depending on individual financial circumstances. Costs relating to the Deputyship appointment can be recovered from the person who needs the Deputy. Usually, the applicant pays the costs and is reimbursed once the Deputy Order is received and the Deputy has access to the person’s bank account.

You don’t need to engage a lawyer, but the process can be complicated and long-winded, so it’s a good idea to talk to a professional but get an idea of cost too. A specialist solicitor will have a lot of experience of handling applications and will make sure there aren’t any application errors or omissions. They will also notify the relevant people in good time. Equally, if the Deputyship application is contentious (ie someone objects) and this leads to Court proceedings, you will benefit from legal representation at any hearings.

A Deputyship Order lasts for as long as the individual concerned lacks capacity and needs someone to make decisions on their behalf. A Deputyship will usually last for the lifetime of the person lacking capacity. However, the person’s specific capacity should be regularly reviewed, and the Deputy appointment should be terminated if the person becomes able to make their own capacitated decisions.

As a general rule, there needs to be a valid reason for someone to end a deputyship. The most common reasons for the role coming to an end are:

1. If the person regains their mental capacity;
2. If the Deputy dies. If two or more Deputies act jointly, the joint appointment will no longer be valid if one deputy dies. If they have been appointed to act jointly and severally, this means the surviving deputy(s) can continue to act;
3. If the Deputy decides they can no longer continue. If this happens, the Deputy must submit a COP1 form the Court, requesting the appointment of a new Deputy.

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