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Court of Protection
What is Court of Protection?
Applications to Court of Protection are commonly made in the following situations:
- When a person no longer has the capacity to deal with their own financial affairs
- When an individual can no longer make informed decisions about their personal welfare
- When there are no Lasting Powers of Attorney in place
- When the family of the vulnerable individual experience difficulties gaining access to their bank accounts, selling property and paying any outstanding accounts.
By applying to Court of Protection the loved ones of a vulnerable individual are able to appoint Deputy to deal with their affairs and finances.
The role of the Deputy is similar to that of an Attorney. They are required to manage the property and affairs of the vulnerable person, make decisions with regards to their health and welfare and at all times act in their best interests. Deputyship is usually given to a close family member or friend or to a professional.
At Wildings Solicitors we understand that the process of applying for deputyship can be confusing, distressful and upsetting. Our experienced team of specialists are here to assist and support you in applying for to the court of protection.
Frequently Asked Questions
The Court of Protection has jurisdiction to appoint a person to make decision on behalf of another person who lacks capacity (under the Mental Capacity Act 2005).
A Deputy is a person appointed by the Court of Protection to deal with either, or both of the following:
- Property and financial affairs; and/or
- Personal welfare
The Court of Protection will only appoint a Deputy if:
- If the person lacking capacity has not made an enduring power of attorney or lasting power (LPA) of attorney that covers the decisions to be made. Provided the LPA has been properly registered.
- It believes that the appointment of a Deputy is preferable to the Court of Protection making a decision.
It is important to consider a deputyship in circumstances where the person who lacks mental capacity and who has assets that need to be administered or decisions need to be taken about the persons personal welfare.
For example, a person with a brain injury would need to have a deputy appointed to administer a court settlement for pay for any ongoing care. Other circumstances include a person with dementia who may need to access any savings held in their bank account to pay for care home charges.
"A Deputy is a person appointed by the Court of Protection to deal with either, or both of the following:
- Property and financial affairs
- Personal welfare
Any persons over the age of 18 can be a deputy. The prospective deputy must declare any criminal convictions or bankruptcy arrangements to the Court of Protection when applying to become a deputy. Failure to declare this can result in the application being refused.
In most cases, a spouse, partner or a close relative will be a deputy. If there is no one who is willing or able to take the role as a deputy, the local authority or a professional deputy (such as a Solicitor) can be appointed.
The person who lacks capacity is often referred to as ‘P’, The person appointed is called a deputy.
Section 18(1) of the Mental Capacity Act 2005 lists the powers the Court of Protection may authorise a deputy to exercise in relation to P’s property and affairs. This list is indicative and subject to restrictions:
- the control and management of P’s property;
- the sale, exchange, charging, gift or other disposition of P’s property;
- the acquisition of property in P’s name or on P’s behalf;
- the carrying on, on P’s behalf, of any profession, trade or business;
- the taking of a decision which will have the effect of dissolving a partnership of which P is a member;
- the carrying out of any contract entered into by P
- the discharge of P’s debts and of any of P’s obligations, whether legally enforceable or not;
- the settlement of any of P’s property, whether for P’s benefit or for the benefit of others;
- the execution for P of a will;
- the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee or otherwise;
- the conduct of legal proceedings in P’s name or on P’s behalf.
It is not possible for the Court of Protection to give property and financial affairs in the following circumstances:
- settle any of P’s property, whether for P’s benefit or for the benefit of others;
- Execute a will for P
- Exercise power vested in P as a trustee or beneficiary or otherwise.
Section 17 of the Mental Capacity Act 2005 lists the powers that the Court of Protection may authorise a deputy to exercise in relation to personal welfare. Again this list is indicative, not exhaustive and subject to restrictions:
- deciding where P is to live;
- deciding what contact, if any, P is to have with any specified persons;
It is not possible for the Court of Protection to give personal welfare deputy power to:
- making an order prohibiting a named person from having contact with P;
- giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P;
- giving a direction that a person responsible for P’s health care allow a different person to take over that responsibility.
Section 20 of the Mental Capacity Act 2005.
The scope of the deputy’s powers depend on the terms of the Court of Protection order (the deputyship order) appointing him, and the deputy cannot exceed those powers. The order can give wide powers to the deputy, or set limits to those powers.
The Court of Protection approaches the appointment of deputies for personal welfare with more caution and orders contain narrower powers. The Court of Protection decides whether it is in the persons interest to appoint da deputy and what powers are appropriate.
All deputies must act within the following principles set out in the Mental Capacity Act 2005:
- a person must be assumed to have capacity unless it is established that he lacks capacity;
- a person is not be treated as unable to make a decision unless all practicable steps to help him to do so are taken without success;
- a person is not to be treated as unable to make a decision merely because he is unwise to make a decision;
- an act done, or decision made for or on behalf of a person who lacks capacity must be done, or made, in his best interest.
- before the act is done, or decision is made, the deputy must consider whether the purpose can be achieved in a way that is less restrictive of the person’s rights and freedom of action.
In addition to the above principles, the Court of Protection places a number of obligations to safeguard the person lacking capacity. These include obtaining a security bond, supervision and filing annual reports and accounts.
At Wildings Solicitors, our experienced team can assist you with preparing applications on behalf of prospective deputies. We can assist you with liaising with the Court of Protection, provide advice and support in relation to managing your deputyships and making future applications.
In most cases we can offer fixed fee packages. Where we are unable to offer a fixed fee packages because the work you have instructed us to do is outside the fixed fee package, we will provide you with full details of our fees, court fees and any additional fees from the outset.