The Court of Protection makes decisions on behalf of people who lacks mental capacity and where there is no power of attorney in place. A person may lack mental capacity due to dementia, illness, learning disability or accident. Decisions can be made by the court about welfare or financial matters.
The Court of Protection is responsible for:
An application is made for an assessment of the mental capacity of the individual to whom the application relates and a court fee must be paid. Before making any decision about mental capacity, the court will want to hear from relatives, friends, carers and medical advisers. Full financial disclosure is also required. Once satisfied, the court will issue a court order.
A Deputy is the person or persons appointed by the Court to deal with the affairs of the person who has lost capacity.
There are 2 types of Deputy that you can be applied for which are similar to attorneys under a Lasting Power of Attorney.
(i) Property and Financial Affairs Deputy
The Deputy can take full control of the financial affairs of the individual including paying off all their debts, apply for benefits that they may be entitled to and sell their home to pay for residential or care home fees.
(ii) Personal Welfare Deputy
Provides responsibility to make decisions about the individual’s medical treatment.It is less common for the Court to grant this type of Deputyship, and professional advice should be sought at the earliest opportunity.
A Deputy must consider the individual’s level of mental capacity every time a decision is made for them. This is because you can’t assume that their mental capacity always stays the same. A court order from the Court of Protection will say what you can and can’t do.
Deputies are expected to complete an annual account documenting what decisions have been made on behalf of the individual. This includes all expenditure made on behalf of the individual so it is important to retain all receipts and statements.
If the appointed Deputy is no longer able to act for the individual, another application will need to be made to the court for a replacement Deputy to be appointed. Professionals such as solicitors may act as Deputies if appropriate.
An application to the Court of Protection will need to be made dispensing of the current Deputyship order. Appropriate medical evidence will need to be submitted confirming the regaining of capacity.
Only a professional Deputy can be paid for dealing with financial affairs. A lay Deputy can claim reasonable expenses.
A professional Deputy can be appointed in various circumstances including if the donor or attorney has been found to have abused the individual in relation to their care or finances.
Section 2 of the Act provides:
(i) a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain;
(ii) It does not matter whether the impairment or disturbance is permanent or temporary.
A lack of capacity cannot be established merely by reference to—
(i) a person’s age or appearance, or
(ii) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
Section 3 provides that a person is unable to make a decision for himself if he is unable to:
(i) understand the information relevant to the decision,
(ii) retain that information,
(iii) use or weigh that information as part of the process of making the decision, or
(iv) communicate his decision (whether by talking, using sign language or any other means).
A person is not to be regarded as unable to understand the information relevant to a decision if he makes an unwise decision or if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision. The information relevant to a decision includes information about the reasonably foreseeable consequences of:
(i) deciding one way or another, or
(ii) failing to make the decision.
Section 1 of the Mental Capacity Act 2005 states that anyone making a decision on behalf of a person lacking capacity must act in the bets interests of that person. When deciding what is in the best interests of the person the details of section 4 must be considered including the past and present wishes and feelings of the person who lacks capacity.
The Mental capacity Act 2005 Code of Practice provides guidance to persons with duties under the act. Attorneys must have regard to the code of practice when making decisions on behalf of the donor.
It is a specialist Court which looks after individuals who lack capacity to make decisions for themselves. The Court can give these powers to someone else if there is a need for decisions to be made on an ongoing basis. If the Court delegates these powers to someone else they will be known as a Deputy.
If someone has not made a Lasting Power of Attorney and they lose capacity, then an application needs to be made to the Court of Protection asking the Court to appoint a Deputy. The Court would appoint a Deputy to take care of someone’s finances or health and welfare when a person is no longer able to make those decisions.
There are various ways someone can lose capacity. This could be through suffering Alzheimer’s, dementia, a stroke, brain injuries, severe post traumatic stress disorders or severe learning disabilities.
It is the Court who ultimately decides if someone lacks capacity. Although what frequently tends to happen is a solicitor is instructed to deal with the application. The solicitor will then seek medical advice from a doctor which they then present to the Court. If the medical evidence shows a person lacks capacity then this will be persuasive to the Court.
It is however important to note that just because a person lacks capacity to make certain decisions i.e. in relation to their finances, they may still have capacity to make personal decisions like where to live or whether to make a will. Capacity tests are task specific and you must not assume it’s the same at all times. You must therefore consider someone’s level of capacity every time you make a decision for them.
Anyone over 18 can be appointed as a Deputy although it is usually a family member, close friend or a solicitor. The Court will look first of all at whether there is anyone who has a close connection to the person lacking capacity and would be able to effectively carry out the role. If there is no one suitable then it may be more appropriate for a solicitor to be appointed. Solicitors specialising in Court of Protection matters will have the right expertise to be able to make decisions in complicated matters or where there are a lot of finances to manage.
Most Deputies are property and affairs Deputies. If you want to become a property and affairs Deputy you need to have the skills to make financial decisions for someone else.
However the Court may appoint a personal welfare Deputy, if the person is susceptible to abuse or there has been a history of disputes within the family in relation to care.
The Court can appoint 2 or more Deputies for the same person. The court will tell you how to make decisions if you’re not the only Deputy. It will be either jointly or jointly and severally. If it is jointly this means that all the Deputies have to agree on the decision and make them together. Whereas if it is jointly and severally this means that Deputies can make decisions on their own or with other Deputies. The second option provides greater flexibility.
If a person lacks mental capacity to make decisions about their property and financial affairs, and they have not made either a valid Enduring Power of Attorney or a valid Lasting Power of Attorney, an application will usually be necessary to appoint a Deputy so that they can:
The court only tends to make deputyship orders in the most difficult cases, such as where:
This could be for instance where a person suffers from a progressive illness or profound learning difficulties and various medical decisions are required to be made on their behalf over a long period of time i.e. if they are a young person. It could also be where there have been family disputes in the past which could impact on the vulnerable person’s future care or where they are considered to be at risk of serious harm if left in the care of family members.
The court would look at all the evidence and may make welfare decisions in relation to the following matters:
An example of when it would be useful to have a personal welfare Deputy appointed may be, for instance, where a vulnerable person has poor physical and mental health and it would assist those treating them to have a Deputy appointed. The Deputy would be able to discuss sensitive issues with the family but ultimately the Deputy will make the final decision.
There are a series of forms which must to be completed and sent off to the Court of Protection. These must be supported by a medical practitioner’s capacity assessment showing that the person cannot make decisions for themselves.
There are quite a lot of formal procedures to follow, for example, who must or who may be made aware of the application and sign the forms, and there are strict timeframes to adhere to. It is vital the forms are correctly filled in, otherwise they will be sent back. If you would like assistance with the application process a solicitor will be able to help.
It really depends on a range of factors, such as:
In most straightforward cases it tends to take around 3 to 4 months.
An urgent application can be made to the Court of Protection if there are concerns that the person might lose a lot of money or suffer physical or mental harm if the application is not dealt with expeditiously. This emergency application is different to the standard application and a solicitor would be able to provide advice in relation to the same.
Deputies must make sure they correctly fulfil their duties. Deputies should bear in mind the guidance on the Mental Capacity Act 2005 Codes of Practice. In particular they must ensure that they:
Yes each year you have to report to the Court showing all the major decisions you have made, and providing detailed accounts of all the money that has been received and what has been spent. It is therefore crucial to keep a proper record throughout the year.
There are certain things a Deputy must never do, including:
A Deputy cannot make a will on behalf of a person lacking capacity. However a Deputy, Attorney or someone likely to inherit from the person when they die, can apply to the Court of Protection to ask for permission to make a statutory will. Application forms have to be completed and sent to the Court with a statement setting out the reasons why you think the will should be drawn up in terms you have suggested. The Court will then decide whether this should be allowed. The process can be complicated and expensive but a solicitor could assist with this.