If someone you love has been seriously injured and can no longer make decisions for themselves, it can feel like everything is happening at once. The Court of Protection exists to make sure those decisions – about money, care and treatment – are made properly, and in their best interests. Here's what you need to know first, followed by more detail on each step.
Key takeaways: Court of Protection after serious injury
- The Court of Protection makes decisions for people who can't make decisions themselves after a serious brain injury or illness.
- A deputy can be appointed to manage financial affairs, property, and in some cases health and welfare decisions for an injured person.
- The Mental Capacity Act 2005 sets out five principles that guide all Court of Protection decisions, with best interests at the centre.
- Our specialist Court of Protection solicitors help families apply for deputyship and can act as professional deputies to ease the burden.
- A personal injury trust can protect compensation awards from affecting means-tested benefits, working alongside deputyship arrangements.
What is the Court of Protection?
The Court of Protection is a specialist court in England and Wales that makes decisions for people who lack mental capacity. It was created under the Mental Capacity Act 2005 and came into force in October 2007.
After a serious injury, particularly a brain injury, your loved one may no longer be able to make certain decisions for themselves. This could involve managing money, paying bills, or making choices about medical treatment. The Court steps in to protect their interests and make sure decisions are made properly on their behalf.
The Court can appoint someone called a deputy to make ongoing decisions. It can also make one-off decisions itself, decide whether someone has capacity, and deal with issues relating to lasting powers of attorney.
When does the Court of Protection become involved after injury?
The Court becomes involved when someone can't make decisions for themselves due to an impairment or disturbance of the mind or brain. After a serious injury, this often happens because of:
- a traumatic brain injury affecting cognitive function
- a stroke or other brain illness
- severe learning disabilities
- confusion or unconsciousness from the injury or treatment
If your family member has been injured and can no longer manage their affairs, you can't simply take over for them. An application must be made to the Court to appoint a deputy before you can legally act on their behalf.
We help families through this process every day. Our brain injury specialists work closely with our Court of Protection team, so your legal claim and deputyship application move forward together.
What is a deputy and what do they do?
A deputy is someone authorised by the Court of Protection to make decisions on behalf of a person who lacks capacity. There are two types of deputy, each with different responsibilities.
Property and financial affairs deputy
This type of deputy handles money matters. They pay bills, manage bank accounts, organise pensions and benefits, and make decisions about buying or selling property. Most deputies are appointed for property and financial affairs.
When someone receives a compensation award after serious injury, a financial affairs deputy makes sure the money is managed properly to meet their needs for the rest of their life.
Personal welfare deputy
A personal welfare deputy makes decisions about care, treatment, and where someone lives. The Court only appoints personal welfare deputies in limited circumstances, usually when there are ongoing disputes about care or when specific decisions need to be made over time.
For most welfare decisions, the Court makes one-off rulings rather than appointing a deputy.
Who can be appointed as a deputy?
A deputy must be over 18 years old. Often, deputies are family members such as a spouse, partner, adult child, or close friend. More than one deputy can be appointed for the same person.
There can't be any conflict of interest. For example, if someone caused the injury, they can't act as deputy.
Managing a loved one's affairs on top of caring for them can be overwhelming. In these situations, a professional deputy can take on the role instead. Our specialist Court of Protection solicitors can act as professional deputies for property and financial affairs, helping to ensure that compensation and financial matters are managed appropriately.
How does the Court decide if someone lacks mental capacity?
Mental capacity isn't an all-or-nothing state. Someone might be able to make some decisions but not others. The Mental Capacity Act 2005 sets out a two-stage test to assess capacity for each specific decision.
Stage one: is there an impairment?
The first question asks whether the person has an impairment of, or disturbance in, the functioning of their mind or brain. After a serious injury, this might be a traumatic brain injury or other condition affecting cognitive function.
Stage two: can they make this decision?
The second stage looks at whether the impairment means they can't make this particular decision. A person lacks capacity if they can't:
- understand information relevant to the decision
- retain that information long enough to make the decision
- weigh up the information to reach a choice
- communicate their decision in any way
Capacity is assessed on the balance of probabilities – in plain terms, if it's more likely than not that someone can't make a decision, they lack capacity for that decision.
What are the five principles of the Mental Capacity Act?
The Mental Capacity Act 2005 is built on five core principles that guide every decision. Anyone working with someone who lacks capacity must follow these principles.
Principle 1: assume capacity
Every adult is assumed to have capacity unless proven otherwise. You can't assume someone lacks capacity just because they have a brain injury or other condition.
Principle 2: support decision-making
Before deciding someone lacks capacity, you must give them all practical help to make the decision themselves. This might mean explaining information in simpler terms, using visual aids, or waiting until they're more alert.
Principle 3: unwise decisions are allowed
Making an unwise decision doesn't mean someone lacks capacity. People have the right to make choices others might disagree with.
Principle 4: best interests
Any decision made for someone who lacks capacity must be in their best interests. This isn't simply what the deputy thinks is best, but requires considering the person's wishes, feelings, beliefs and values.
Principle 5: less restrictive option
Decision-makers must consider whether there's a less restrictive way to achieve the same outcome. Any intervention should limit the impact on the person's rights and freedoms as much as possible.
How do you apply for deputyship?
Applying to become a deputy involves completing several forms and paying an application fee. The process can take six to eight months, though urgent applications may be expedited.
Gather the required documents
You'll need medical evidence that the person lacks capacity to make decisions. This usually comes from their doctor or a specialist who has assessed them. You must also complete the Court of Protection application forms.
Notify relevant people
Certain people must be told about the application, including close family members. They have an opportunity to raise concerns or objections with the Court.
Submit your application
Applications are sent to the Court of Protection with the application fee. The Court will check whether a deputy is needed and whether there are any objections to your appointment.
Await the Court's decision
If approved, you'll receive a court order setting out what decisions you can make. Some decisions may still require the Court's approval. Once appointed, you must send an annual report to the Office of the Public Guardian explaining the decisions you've made.
Getting the application right first time avoids delays. Our Court of Protection solicitors guide families through every step, making sure forms are completed correctly and all required information is included.
What happens if you need money urgently?
Sometimes families need access to funds before deputyship is granted. Medical equipment, care costs, or home adaptations can't always wait six to eight months.
If a compensation claim is underway, interim payments can be secured to bridge the gap. We work to secure funding for immediate needs while the deputyship application is processed, so your loved one doesn't go without essential support.
Urgent applications to the Court can also be made when there's a risk of significant financial loss or harm from delay.
What is the difference between a deputyship and a lasting power of attorney?
The key difference is timing. A lasting power of attorney is set up while someone still has capacity. They choose who will make decisions for them if they lose capacity in the future.
A deputyship is applied for after someone has already lost capacity. The Court appoints the deputy because the person can no longer make the choice themselves.
If your loved one had an LPA in place before their injury, a deputy may not be needed for the decisions covered by that LPA. Checking whether an LPA exists is an important first step.
How does a personal injury trust protect compensation?
When someone receives compensation after injury, that money could affect their entitlement to means-tested benefits. A personal injury trust ring-fences the compensation so it isn't counted in benefit assessments.
The trust requires at least two trustees who manage the funds on behalf of the injured person. Deputies and trustees can work alongside each other, with the deputy handling day-to-day financial decisions and the trustees protecting the capital.
Setting up a personal injury trust correctly from the start prevents problems later. Our private client team explains your options clearly and helps make sure your loved one's settlement is protected for their lifetime.
Can you change a deputy appointed by the Court?
Yes. If you're unhappy with a deputy's decisions or conduct, you can apply to the Court to remove and replace them. The Court will decide whether changing the deputy is in the person's best interests.
All deputies are supervised by the Office of the Public Guardian. If they fail to carry out their duties properly, the Court has power to remove them.
People sometimes believe that because the Court appointed a deputy, nothing can be changed. That's not the case. If a current arrangement isn't working, there are options.
What costs are involved with the Court of Protection?
There are several fees to consider when applying for deputyship and managing someone's affairs through the Court.
Application fees
The initial application fee is paid to the Court of Protection when you submit your forms. If you're applying for both property and welfare deputyship, the fee is paid twice.
Appointment and supervision fees
Once appointed, there's a one-off fee for registering a new deputy. An annual supervision fee is then paid to the Office of the Public Guardian.
Security bond
Property and affairs deputies must take out security in the form of an insurance policy. The premium depends on the value of the estate being managed.
Professional deputy fees
If a professional deputy is appointed, they charge for their time managing the person's affairs. These fees are regulated by the Court and must be assessed as reasonable each year.
Where deputyship costs arise because of a personal injury claim, those costs can often be recovered as part of the compensation. We make sure these future costs are included in settlements, protecting your loved one's award.
How we support families through the Court of Protection
Navigating the Court of Protection while caring for an injured family member is exhausting. We bring clarity and calm to a confusing situation.
Our specialist solicitors take you through every stage of the deputyship application. We explain your options, complete the paperwork, and deal with the Court on your behalf. If a professional deputy would help, we can act in that role ourselves.
Because we handle serious injury claims alongside Court of Protection work, your legal case and deputyship application are coordinated from day one. Our rehabilitation and support coordinators also help secure the care and treatment your loved one needs, working with doctors, case managers and therapists.
This wraparound support means you're not left to piece together different services alone. One team helps your family through everything.
FAQs about Court of Protection after serious injury
What is the Court of Protection used for after a serious injury?
The Court of Protection appoints deputies to make decisions for people who lack capacity after serious injury. It protects injured people by making sure decisions about their money, property, care and treatment are made in their best interests.
Our specialist solicitors help families apply for deputyship so you can manage your loved one's affairs legally and protect their future.
How long does it take to become a deputy through the Court of Protection?
The standard timeframe is six to eight months. Delays can happen if forms are incomplete or the Court needs more information.
We submit applications with all required documentation to avoid hold-ups. Urgent applications can be made when there's a risk of financial loss or harm from waiting.
Can a family member and a professional both act as deputy?
Yes. The Court can appoint multiple deputies, including a combination of family members and professionals. This allows families to stay involved while benefiting from professional expertise.
We can act as a professional deputy alongside a family member, sharing responsibilities in a way that works for everyone.
What is the difference between the Court of Protection and the Office of the Public Guardian?
The Court of Protection makes decisions and appoints deputies. The Office of the Public Guardian supervises deputies after they're appointed, maintaining registers and investigating concerns.
Deputies must send annual reports to the Office of the Public Guardian explaining their decisions and managing accounts properly.
Can someone come out of the Court of Protection if they recover capacity?
Yes. If someone regains capacity, they can apply to the Court to have their deputy discharged. Medical evidence must show they can now make decisions for themselves.
Once capacity is restored, they can manage their own affairs again without Court oversight.
Does a deputy have to follow the injured person's wishes?
Deputies must consider the person's past and present wishes, feelings, beliefs and values when making decisions. The person's wishes aren't automatically binding, but they must be part of the best interests assessment.
Keeping the injured person involved in decisions as much as possible is a core principle of the Mental Capacity Act.
How can I protect my loved one's compensation from affecting benefits?
A personal injury trust keeps compensation separate from means-tested benefit calculations. The funds are held by trustees rather than in the injured person's name.
Our private client team sets up trusts correctly so your family member keeps their benefit entitlement while having access to compensation for their needs.
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