The Court of Protection was created under the Mental Capacity Act 200 Its purpose is to make decisions for people who lack capacity and cannot make decisions themselves. This can be concerning property, financial affairs, medical and personal affairs.
The Court determines how and what decisions can be made for someone and appoints deputies who can make ongoing decisions for people who lack capacity. The Court also makes decisions about lasting powers of attorney and statutory will applications.
The Court was established to ensure that if someone cannot make decisions themselves (either through illness, injury or old age), then decisions can be made on their behalf in their best interests. The Court also decides if someone lacks the capacity to make decisions in the first place.
You can apply to the Court to appoint a deputy, to allow the appointed person to make some decisions on their behalf. Most deputies are appointed to make decisions in relation to finance and property, although some do allow for decisions concerning health and welfare.
A deputy can be appointed after someone has been deemed to lack capacity. People can lack mental capacity as a result of:
An application will need to be made to the Court to appoint a deputy before any decisions can be made. Before a deputy is appointed, the Court will make any decisions on the person's behalf.
There are two types of deputies that the Court of Protection can appoint. These are a property and financial affairs deputy and a health and welfare deputy.
Property and financial affairs deputy: this involves making decisions about financial matters, including paying invoices and bills, sourcing and buying services, protecting benefits entitlement, and organising pensions.
Health and welfare deputy: this includes making decisions about the care and treatment someone receives, as well as deciding where someone lives.
Health and welfare deputies are only appointed in rare circumstances, with decisions usually being made by the Court of Protection rather than a deputy.
Applications can be made for one type of deputy or both. Once someone has been appointed as a deputy, a court order will be issued detailing what decisions can or can't be made. There may still be some decisions that a person can make themselves, and it's important that the person who lacks capacity is kept informed and is included in any decisions that need to be made.
A deputy must be over the age of 18 and is often the person's spouse or partner, their child, or a close relative or friend. Sometimes, looking after all aspects of a family member's affairs can be stressful. In these situations, a legal expert or a solicitor can be appointed to manage this as a professional deputy.
For more information download our eBook: A guide to professional deputies: what you need to know
It is a common misconception that you apply for Court of Protection. This is not correct. You must apply to the Court of Protection to appoint a deputy to make decisions on behalf of someone who lacks mental capacity. You can also apply to the Court of Protection to make decisions in situations where another person does not have the authority to make these decisions on the person's behalf.
You do not apply for, but to the Court of Protection. You must make an application to the Court to appoint a deputy for either property and financial affairs, personal welfare, or both. You must first check you meet the relevant requirements to become a deputy. An application form and other associated forms must then be completed and submitted to the Court of Protection, along with an application fee.
Once someone has been appointed as a deputy, they must send annual reports to the Office of the Public Guardian (OPG), containing details of all the decisions that have been made on the person's behalf, as well as explaining why these decisions have been made, and a breakdown of all income and expenditure.
There is an initial fee payable to the Court of Protection to apply to appoint a deputy. The application fee is £365 and must be sent with your application form. If you are applying for both types of deputyship, then you must pay this application fee twice.
After the application has been accepted, there is a one-off appointment fee of £100 for adding the deputy to a list and an annual supervision fee that must be paid each year to the OPG. This fee will be dependant on the level of supervision needed.
All property and affairs deputies are also required to take out security in the form of an insurance policy with a recognised provider. The premiums are dependent on the value of the person's estate under management.
If a professional deputy has been appointed, there will also be an annual sum for managing the affairs. Most professional deputies charge in 6-minute units at an hourly rate set by the Court. At the end of each year, the professional deputy must send their file of papers for assessment by the Senior Courts Costs Office to determine whether or not the amount claimed is reasonable and proportionate. You can find out more about professional deputies in our eBook here: A guide to professional deputies: what you need to know
If the person you're appointed as deputy for is in receipt of certain means-tested benefits or has an income under £12,000, you can apply for an exemption or reduction to the fees you have to pay to the Court of Protection and OPG.
The costs associated with the appointment of a professional deputy and the ongoing management fees can be recoverable as part of a personal injury claim. As these costs could be incurred for the whole of the person's life, they can substantially contribute to any final settlement received.
There are strict rules on what a professional deputy can charge for managing a person's financial affairs if their estate is below a certain amount.
It usually takes around four to six months for the Court of Protection to appoint a deputy. It can take longer if the Court decides it requires more information to be able to appoint a deputy. To avoid this happening, or any other delays, all forms must be filled out correctly, and all the relevant information provided to the Court with the application.
In some cases, you can make an urgent application and request that the Court expedite existing applications. Urgent applications are usually considered where someone may lose a lot of money or where their physical or mental condition may deteriorate considerably if a decision is not made quickly.
If someone regains capacity to make decisions themselves, they will no longer require a deputy to act on their behalf. The person who has regained capacity will need to get evidence from a medical expert to prove that they can now make decisions for themselves. An application can then be made to the Court of Protection for the deputy to be discharged. The person will then be able to manage their own affairs again as normal.
If you are not happy with the deputy that the Court of Protection has appointed, you can apply to change your deputy. People often think this isn't possible because the Court has appointed the deputy, but a deputy can be removed and replaced by the Court. An application must be made, and the Court will decide if changing the deputy is in the person's best interests. You can find out more about changing a professional deputy in our blog.
If you still have mental capacity, you can appoint someone to help you make decisions in the future, should you be unable to make these decisions yourself. This is a lasting power of attorney (LPA). An LPA can be made at any time you wish, so long as you still have the mental capacity to make decisions yourself.
There are two types of LPA, which depend on what decisions you are allowing someone to make on your behalf. The two types are health and welfare, and property and financial affairs.
Health and welfare LPA: Put in place to help make decisions about the care you receive, including moving to a residential care home and the right setting for you, any medical or treatment you need, your daily care such as washing, dressing and eating and any life-sustaining treatment you receive. This type of LPA can only be used if you lose capacity. If you can still make decisions yourself, you will continue to do so as normal.
Property and financial affairs LPA: Put in place to help make decisions around your finances and money, as well as any property you own or purchase. This can include managing your bank accounts, paying invoices and bills, arranging benefits and pension payments and selling, adapting or buying a home. A property and financial affairs LPA differs from health and welfare and can be used as soon as it's registered. This means the person appointed as your attorney can start helping to make these decisions straight away, providing they have your permission.
Yes, you can ask the OPG to change your registered attorney, providing you still have the mental capacity to make this decision yourself. You can also remove an attorney by sending a revocation notice to the attorney and to the OPG.
You can appoint as many attorneys as you wish when you make an LPA. If you wish to appoint more than one attorney, you must decide if the attorneys are to make decisions separately or together. If you wish for them to make decisions together, they must all agree on the decision.
If you only appoint one attorney, and that person becomes ill or no longer able to act, you must make another LPA to appoint a new attorney. You can, however, nominate another person to replace your attorney if they can no longer act when you first make your LPA.
