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:
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 following principles apply for the purpose of the Act:
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.
A person is unable to make decisions if they cannot:
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:
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: https://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.
This office is the administrative arm of the Court of Protection and helps protect people who lack capacity by:
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 at firstname.lastname@example.org or telephone us on 08000699784 and we will forward your enquiry to the The National Careline solicitor.
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: