Court of Protection Q & A

What do I do if a relative is losing mental capacity?

If the person concerned has not made an Enduring Power of Attorney or a Lasting Power of Attorney, then an application will have to be made to the Court of Protection for someone to act on their behalf. This person is called a deputy.

What is the Court of Protection?

The Court of Protection exists to help make decisions for someone who is not able to make those decisions themselves or to appoint a deputy to make those decisions on their behalf.  These decisions can be about property and finances and about your health and welfare.  The Court cannot make decisions merely because a person is ill or vulnerable, it can only do so if they ‘lack capacity’.

What is meant by a ‘lack of capacity’

This is defined in The Mental Capacity Act 2005. A person lacks capacity if they are unable to make their own decisions because of ‘an impairment or disturbance of the functioning of the mind or brain’. This may be because of an accident or due to a form of dementia such as Alzheimer’s.

Each decision must be viewed separately. It may be that the person can make some decisions for themselves but not others.

What kinds of deputy are there?

There are two kinds of deputy that can be appointed:

• a deputy for property and financial affairs (personal finances); and
• a deputy for personal welfare (care and treatment).

It should be noted, however, that the Court of Protection will only appoint a personal welfare deputy in exceptional circumstances, for example making ongoing decisions about the welfare of a young person.

Who can be a deputy?

Deputies are usually close relatives or friends of the person who needs help making decisions. A deputy must be aged 18 or over.

In considering an application, the Court of Protection will need to be sure that the application is in the best interest of the person for whom the deputy will act, that the person applying to be the deputy has the necessary skills and ability to carry out the duties of a deputy and is trustworthy and reliable.

Sometimes it is possible, and indeed sensible, for there to be more than one deputy appointed and this can be discussed with you, if appropriate.

What decisions can a deputy make?

The Court of Protection will decide what decisions the deputy can make, based on the circumstances at the time. If circumstances change so that a higher level of supervision is required by the deputy, a further application may need to be made. Decisions that a deputy makes must follow the guidance contained in the Mental Capacity Act 2005 Code of Practice, which the deputy is required to read and understand.

Broadly-speaking, the principles are:

• if the person for whom the deputy is acting is able to make a decision on their own, the decision must be made by them;
• If the person cannot make a decision without assistance, the deputy must do their best to help them to do so;
• only if neither of these is possible, can the deputy make decisions on their own.
• any decisions made by the deputy must always be in the best interest of the person for whom they are acting.

What should I think about in considering whether I should become a deputy?

You need to consider the responsibility you will take on and the possible calls on your time. As a deputy, you will be responsible for investigating and compiling a list of all or the person’s assets both in the UK and perhaps abroad;

• dealing with their day to day living expenses;
• making sure that all necessary insurance is in place for the protection of assets;
• assessing the affordability of long-term care;
• making an annual report to the Office of the Public Guardian (a part of the Court of Protection).

How can you help?

Our experienced staff can assist you in everything you need in making an application to become a deputy.

Some of the things that we will consider with you are:

• obtaining medical evidence to assess the capacity of your relative or friend. We have experts that we can recommend, if needed.
• whether there is anyone else who might apply to become the deputy and, if so, whether a joint application may be appropriate.
• what your responsibilities and obligations will be.
• what information is needed to complete the application papers.
• the time to be taken for the application. This is usually several months but it may be possible to deal with matters much more quickly in certain circumstances.
• what will happen once the application is approved and what then needs to be done.
• our fees and the Court’s charges. These are normally paid from the funds of the person who has lost capacity and we will discuss these with you when taking your instructions.

Appointing a deputy is only the first step and we will support you for as long as you need with your ongoing duties as a deputy:

• registering the deputyship order with the appropriate authorities.
• helping you to comply with your obligations under the Mental Capacity Act 2005.
• advising what records you need to keep in evidence of any major decisions and the reasons behind them.
• assisting you to prepare and submit your annual report to the Office of the Public Guardian.
• ensuring that the level of supervision authorised by the deputyship order is appropriate or whether further direction is needed.