What is the Court of Protection?

People usually come across the Court of Protection at a difficult time in their lives such as caring for a loved one living with dementia.

You may be wondering “what is the Court of Protection?” We’re here to help answer this question, to explain what the Court of Protection does; what is a Deputy and how that role differs from acting as a Lasting Power of Attorney (LPA).

Put simply, the Court of Protection makes decisions about a person’s health, welfare, financial affairs and property if they are unable to make some or all of those decisions from themselves.

If someone can’t make some or all of those decisions, they are described as “lacking mental capacity”.  This situation can arise for many different reasons, such as those living with dementia, stroke and brain injury survivors or people with learning disabilities.

You, or someone assisting you, applies to the Court of Protection if you need permission to make decisions about someone else’s property or financial affairs, their health or welfare..

The Court of Protection is responsible for a number of decisions under the Mental Capacity Act. Some of which include:

• Deciding if someone has the mental capacity to make decisions for themselves.
• Appointing someone (a deputy) to make ongoing decisions for a person who can’t make those decisions themselves due to a lack of mental capacity.
• Granting permission for a single, one-off decision to be made on behalf of someone who can’t make the decision themselves.
• Dealing with urgent cases where a decision has to be made quickly for someone else.
• Making decisions about an LPA.
• Considering any objections to the registering of an LPA.
• Looking at applications for payments to family members, statutory Wills or gifts.

Additionally, the Court of Protection can remove a deputy or an appointed attorney. They can decide whether or not an action taken on the person’s behalf is appropriate.

For example, this could include selling their property or choosing a particular type of medical treatment.

The Court of Protection can make a special type of Will or make changes to an existing Will for someone who lacks capacity to do it themselves. This is known as a Statutory Will.

A statutory Will is invaluable when the person is unable to make a Will for themselves and lacks capacity to understand how much money, property or other assets they have and to whom it may be left.

Read on for information about Statutory Wills.

Unlike the attorney chosen and appointed by someone when they make an LPA, a Deputy is appointed once a person has already lost mental capacity to make an LPA or to make decisions for themselves.

The two most common types of Deputy a Court of Protection appoint include:

Personal Welfare Deputy

Otherwise known as a Health and Welfare Deputy. A Personal Welfare Deputy can make decisions for a person such as:

• Day-to-day care such as dietary needs
• Medical treatment (including dental treatment)
• Care services
• Leisure and social activities
• Where the person lives

A deputyship is usually an option for individuals where they haven’t already made an LPA or if there is a disagreement as to their medical treatment, care decisions etc.

A Personal Welfare Deputy can also make complaints on an individual’s behalf about their care.

What can’t I do as a Personal Welfare Deputy?

When it comes to health and wellbeing decisions, a Personal Welfare Deputy all decisions must be made strictly in the “best-interests” of the person about whom a decision needs to be made and who lacks mental capacity to make that decision themselves.

This means a Personal Welfare Deputy cannot stop life-sustaining medical treatment or force a treatment the NHS doesn’t recommend. A Deputy also must not abuse the individual or profit from them in any way.

A Personal Welfare Deputy can’t restrain the person unless it’s to prevent them from harming themselves or others.

Property and Financial Affairs Deputy

A Property and Financial Affairs Deputy is legally responsible for managing a person’s property and finances. Their duties can include paying the person’s bills, managing their bank accounts, handling investments and, with additional approval from the Court, selling a person’s property.

The Office of the Public Guardian (OPG) closely monitors a Property and Financial Affairs Deputy.

A Deputy is obliged to submit an annual yearly report containing the financial decisions made and the actions they’ve taken, all of which must be in an individual’s best interests.

The OPG oversees the Deputy’s actions to ensures that any decisions made are person’s best interests.

Find out more about how to apply to the Court of Protection:

In short, an LPA is set up before a person has lost capacity to make decisions for themselves.

When making an LPA, the Donor can choose someone they know and trust to act on their behalf. If someone lacks capacity to make an LPA or the person they have chosen is unsuitable, the Court of Protection can get involved after a person has lost capacity to appoint a Deputy.

You may be wondering “I’ve recently received a dementia diagnosis – can I still make an LPA?”

The answer is yes, if you still have the requisite mental capacity and you fully understand the nature and extent of an LPA.

Find out how mental capacity is assessed for an LPA.

A lot of people think that family members can step in if a loved one develops dementia, suffers a brain injury or experiences a similar life-changing event.

However, without an LPA in place, organisations such as banks, mortgage providers, utility providers and even mobile phone providers, won’t deal with family members without a Deputy having been appointed by the Court.

If a person doesn’t have the mental capacity to create an LPA, then the only alternative option is to apply to the Court of Protection for a Deputy to be appointed.

Similarly to an attorney for an LPA, a Deputy for a Court of Protection can be a relative, partner or close family friend, as long as they meet the necessary legal requirements, around experience in dealing with finances, the absence of past insolvency events or criminal convictions.

Where a suitable Deputy can not be identified or where there is disagreement amongst family members, the Court of Protection itself will decide on a suitable Deputy and as a last resort may appoint a professional Deputy from their approved Panel of Deputies.

At Birchall Blackburn Law, for example, our Partner Catherine MacCracken is a Court of Protection Panel Deputy and has been a member since 2012.

On average, a Court of Protection application can take 6-9 months to be processed by the Court of Protection, though this can vary widely from case to case.

It’s possible to ask for an urgent interim order if you need access to finances immediately, but even these applications can take several months to be considered by the Court.

For example, if you need to pay for an elderly relative’s care home fees, but their bank account is inaccessible. An interim order allows you to access funds even if your Court of Protection application is yet to be approved.

There is no fee to pay for an urgent interim order. The order must be for a specific one-off decision that needs to be made, as not doing so would negatively affect the donor’s livelihood or wellbeing.

Another example of where an urgent interim order may be necessary is when immediate medical treatment is needed in a “life or death” scenario.

An urgent interim order can also be used to stop someone visiting a person who has lost mental capacity. For example, someone who is being emotionally or financially abusive towards the individual.

A Court of Protection application normally involves paying a fee to the Court itself. Some people are exempt from paying the fee, depending on your income, the benefits you receive and any savings you have.

The current application fee is £432, in addition you may also have to pay for a formal capacity assessment by a medical professional which can cost between £400 and £1000 depending on the complexity.

However, costs for a Court of Protection application can vary depending on a number of factors such as whether a solicitor is needed to attend court or expert witnesses are required.

The cheapest, fastest and most effective way to ensure that your choice is respected and your  wishes are taken into account, is to plan ahead and make an LPA as soon as possible..

Who can’t I legally appoint to be an attorney or deputy?
When it comes to a financial and property affairs deputyship or LPA, you won’t be able to choose someone who is bankrupt or under a Debt Relief Order (DRO) or in some cases, someone with a criminal record.

Can a family member or a close friend apply to become someone’s Deputy?

Absolutely – a Deputy can be a family member, partner or close friend if the Court of Protection considers them to be suitable

Who can apply to the Court of Protection without permission?

Apart from yourself, there are situations where you don’t need permission from the Courts to apply to the Court of Protection.

A legal guardian can apply for Court of Protection for someone under the age of 18 without permission from the court, as can a Deputy or anyone named in the Court order.

Who can’t apply to the Court of Protection without permission from the Courts?

Anyone who isn’t named on the Deputyship, even if they’re a family member or close friend, you can’t apply to the Court of Protection without permission from the courts. The same applies to local authorities and healthcare trusts.

What happens if I disagree with the Court of Protection’s decision?

You could challenge a decision with which you disagree, by applying to the Court of Appeal.

Do I need a solicitor to make a Court of Protection application?

No, though it can be a complex process and dealing with an experienced Court of Protection solicitor can take away a considerable amount of stress and can ultimately save time.

For example, if you want to challenge a Court of Protection’s decision, it’s highly advisable to seek legal advice.

About the author: Catherine MacCracken is a solicitor and a Court of Protection panel deputy working in the north of England.