Court of Protection Applications

The Court of Protection is an adjudicating body that makes decisions on property and financial and/or health and welfare matters for people who cannot make decisions at the time they need to be made (they ‘lack mental capacity’). A person may lack capacity due to an illness, an accident or negligence, for example. The court helps to oversee and safeguard the interests of people who may be vulnerable and/or lack mental capacity.

To support a person who lacks capacity, the court usually appoints a deputy. This is a person who makes decisions for the person who has lost mental capacity. A deputy must always act in the person’s best interests. Anyone over the age of 18 can apply to be someone’s Court of Protection deputy. Deputies are usually close friends or members of the family of the person that has lost capacity. If no one is able to act as a deputy, the court can appoint a professional deputy, for example a solicitor. Kew Law LLP can act as a professional deputy on your behalf should this be required.

If a person has lost mental capacity and beforehand made a valid Enduring Power of Attorney or Lasting Power of Attorney then assistance from the Court of Protection may not be required. This very much depends on the type of assistance that is sought from the court.

The Court of Protection adjudicates on matters including:

• Whether a person is suitable to be appointed as a deputy to make ongoing decisions for the person who lacks capacity;
• Whether someone has the necessary mental capacity to make an individual decision for themselves;
• Whether a person can make a one-off decision on behalf of someone else who lacks mental capacity;
• Whether the court should make an urgent or emergency order where a decision must be made on behalf of someone else imminently;
• Whether a decision and/or objection needs to be made in relation to an Enduring/Lasting Powers of Attorney;
• Whether a Statutory Will or statutory gift application should be accepted and ordered by the court;
• Whether someone can be deprived of their liberty under the Mental Capacity Act.

An applicant, for example, a proposed deputy, will ask for the Court of Protection’s assistance by submitting to the court a series of forms and other documentary evidence. The types of forms required for an application will vary depending on the application made. A good starting point for an applicant to the Court of Protection would be to consider the COP1 form.

A deputy is different to an attorney (under a Power of Attorney), because an attorney is appointed by somebody who has (or had at the time of the creation of said legal document) the relevant mental capacity.

Act now to secure your loved ones’ futures

If you are reading this now and you wish for your loved ones to avoid the complications with the Court of Protection in the future, you may wish to seriously consider preparing Lasting Powers of Attorney. Here at Kew Law LLP, we can assist you in the preparation and registration of the Lasting Powers of Attorney. Please click here  for further information.

Frequently Asked Questions

What is the Court of Protection?

The Court of Protection is a specialist court that makes decisions for people who lack the mental capacity to make decisions about their property, finances, health, or welfare.

When is a Court of Protection application needed?

An application is needed when someone lacks mental capacity and does not have a valid Enduring Power of Attorney (EPA) or Lasting Power of Attorney (LPA), or when a decision is required that an attorney cannot make.

What is a deputy?

A deputy is a person appointed by the Court of Protection to make decisions on behalf of someone who lacks capacity. Deputies are usually family members, but a professional deputy, such as a solicitor can be appointed if needed.

How is a deputy different from an attorney?

An attorney is appointed by an individual while they still have mental capacity under an EPA or LPA. A deputy is appointed by the Court after a person loses capacity and if they have not made an LPA or EPA.

Can I act as a deputy for a family member?

Yes. Anyone over 18 can apply, provided they are suitable and acting in the person’s best interests.

Examples

Example A

An elderly parent with advanced dementia

Mrs. Thompson, aged 82, has advanced dementia and can no longer manage her bank accounts or pay her household bills. She never made a Lasting Power of Attorney. Her son wishes to manage her finances to ensure her care fees and daily expenses are covered. Because she no longer has capacity to appoint him as an attorney, he must apply to the Court of Protection to become her Property & Financial Affairs Deputy.

Example B

Dispute between family members

Two siblings disagree about who should manage their mother’s affairs after she develops significant cognitive impairment. Both apply to the Court of Protection, which must decide who is the most suitable and capable person to act in their mother’s best interests. The Court may appoint one, both jointly, or a professional deputy if family conflict risks her welfare.