Court of Protection
The Court of Protection looks after the interests of people who have lost mental capacity and have no other provision such as an Enduring Power of Attorney or Lasting Power of Attorney to take care of their affairs. If a person is mentally incapable of managing their property and affairs, an application can be made to the Court of Protection for the appointment of a Deputy, this can be a family member or friend but, if no such person is available, the Court of Protection has a panel of deputies from which they can make an appointment.
Leaving matters until they get to this stage is a much more expensive option than making an LPA whilst you are able to do it and it is also much simpler and less stressful for everyone.
The Court of Protection has the powers to:
- decide whether a person has capacity to make a particular decision for themselves
- make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions
- appoint deputies to make decisions for people lacking capacity to make those decisions
- decide whether an LPA or EPA is valid
- remove deputies or attorneys who fail to carry out their duties, and
- hear cases concerning objections to register an LPA or EPA and make decisions about whether or not an LPA or EPA is valid.
In fact, the Court of Protection has ultimate control of decisions concerning financial matters and possibly health and welfare for people who fall under its jurisdiction.The Court has the same powers, rights, privileges and authority in relation to mental capacity matters as the High Court.
The Mental Capacity Act 2005 made new provisions for people who lack capacity to make their own decisions.
The following principles apply for the purpose of the Act:
- A person must be assumed to have the capacity unless it is established that they lack capacity.
- A person is not to be treated as unable to make decisions unless it is established that they lack capacity.
- All practical steps must have been taken to help a person make their own decisions without success.
- An act performed or a decision made under the Act for and on behalf of a person who lacks capacity must be performed or made in their best interests.
- A person lacks capacity if he/she is unable to make decisions due to some form of mental impairment. It does not matter if the condition is temporary or permanent. The person’s appearance or aspects of unusual or eccentric behavior should not in itself lead to unjustified assumptions about mental capacity.
Inability to make decisions
A person is unable to make decisions if they cannot:
- Understand the information required to make a decision
- Retain that information
- Evaluate that information as part of the decision making process, or
- Communicate a decision either verbally, using sign language or any other means
The Court of Protection can:
- Decide wheather a person has the capacity to make a particular decision for themselves.
- Make declarations, decisions or orders on financial or welfare matters affecting people who lack the capacity to make such decisions.
- Appoint deputies to make decisions for people lacking the capacity to make those descisions.
- Decide whether a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA) is valid.
- Remove deputies or attorneys who fail to carry out their duties.
- Hear cases concerning objections to register an LPA or EPA and make decisions about whether an LPA or EPA is valid.
If you think the person you care about has lost the ability to make decisions about their finances, property or personal welfare and you would like to be able to help them to make these decisions but the person does not have any Lasting Power or Enduring Power of Attorney in place, you will need to apply to the Court of Protection to become a Deputy. A Deputy is someone who has been appointed by the court to look after someone else's affairs.
The Deputy order received from the court will set out the extent of the powers they have been granted. They may be - finances or personal welfare and the authority given will reflect the needs of the person they have been appointed to assist and the decision of the Court.
They will need to ensure they only make decisions within the authority they have been granted by the Court and cannot delegate this authority. They must keep information confidential unless there is a reason to disclose it and always act in the person's best interests with honesty, good faith, diligence and with integrity. The deputy must keep their own money and finances completely separate from the donor's finances and indemnify the person against liability to third parties by reason of their negligence.
Deputies have to keep and submit annual financial accounts to the court and pay a legal fee followed by annual filing charges and fees. People often appointed as Court Deputies include relatives, friends or neighbours but all, once appointed have to carry out their duties with due regard to all the relevant guidance in the Code of Practice issued by the Court. Any decisions made for the person must be made adhering to the five statutory principles of the Mental Capacity Act (MCA) 2005. These are:
- Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.
- A person must be given all practicable help before anyone treats them as not being able to make their own decisions.
- Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
- Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
- Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.
Further information is available on the Gov.UK website. The Office of the Public Guardian information is also available on Gov.UK. You will find information relating to making an LPA application, how to apply to the Court of Protection to be appointed as a deputy, the supervision of deputies, and general information about what the OPG does. The Gov.UK site can be accessed using the link: www.gov.uk/power-of-attorney/overview and you can also download the complete guide from here if needed. For example, for someone who doesn't have computer access.
Office of the Public Guardian (OPG)
Report a concern about an attorney or deputy
This office is the administrative arm of the Court of Protection and helps protect people who lack capacity by:
- Setting up and managing a register of Lasting Powers of Attorney (LPA);
- Setting up and managing a register of Enduring Powers of Attorney (EPA);
- Setting up and managing a register of court orders that appoint Deputies;
- Supervising Deputies, working with other relevant organisations (for example, social services, if the person who lacks capacity is receiving social care);
- Instructing Court of Protection Visitors to visit people who may lack mental capacity to make particular decisions and those who have formal powers to act on their behalf such as Deputies;
- Receiving reports from Attorneys acting under LPAs and from Deputies; and
- Providing reports to the COP, as requested, and dealing with cases where there are concerns raised about the way in which Attorneys or Deputies are carrying out their duties.
Once the Court has made its order, it is up to the OPG to monitor and supervise any Deputies who are appointed. The OPG can decide on the level of supervision each case requires and this will depend on a wide range of factors including the value of the estate of the person lacking capacity, the experience of the person carrying out the duty and the support the person is likely to need.
In cases where a Deputy fails to meet the supervision requirements laid down, the OPG has the power to take the case back to the Court. The case will then be reviewed and the Court may take further action, including terminating the appointment of the Deputy.
If there is no Lasting Power of Attorney in place for the person you care for or you are having problems with a Court of Protection issue, we can help you. Please contact us or telephone us on 0800 0699 784 and we will forward your enquiry to the The National Careline solicitor.
Contact the Office of the Public Guardian if you have concerns about an attorney, deputy or a decision they’ve made for someone else. For example, the misuse of money, decisions that aren’t in the best interests of the person they’re responsible for or criminal activity.
Telephone: 0300 456 0300
Textphone: 0115 934 2778
Monday to Friday, 9am to 5pm (except Wednesday) - Wednesday 10am to 5pm
The Office of the Public Guardian can help if there is a registered lasting power of attorney, a registered enduring power of attorney or a court order.
If one of these isn’t in place, you may have to contact:
- the Department for Work and Pensions for concerns about benefits
- your local adult social services for concerns about care or safeguarding
- your local police if you think someone is not in immediate danger but the attorney has committed a criminal offence
Call 999 if someone is in immediate danger.