Court of Protection

In this insight article, our Wills, Probate, Tax & Trusts team takes a look at the role of the Court of Protection and provides guidance on making an application of deputyship to care for a loved one who has lost mental capacity to make decisions for themselves.

Wills, Probate, Tax & Trusts|25 October 2021

Insight

The Court of Protection is responsible for making decisions on behalf of people who lack mental capacity.

Decisions made by the Court of Protection may include the following:

Deciding whether someone has the mental capacity to make a particular decision for themselves.
Appointing deputies to make decisions for someone who has lost their mental capacity. Such decisions may relate to property and finances or health and welfare matters.
Making one-off decisions on behalf of someone who lacks mental capacity, such as a decision to sell their home.
Making decisions about lasting powers of attorney or enduring powers of attorney and considering any objections to their registration.
Deciding on applications for statutory wills (where someone no longer has the mental capacity to make a will).
Depriving someone of their liberty under the Mental Capacity Act.

Applying for deputyship

The most common application to the Court of Protection is an application for deputyship.

A deputyship application is necessary where a person has lost their mental capacity either through illness or injury, and there is no power of attorney in place authorising a third party to make decisions on their behalf.

A common example would be where an elderly person is suffering from dementia and requires long term care. Their family or loved ones may need to access their bank accounts or sell their property to pay for their care fees. If there is no power of attorney in place appointing an attorney to make decisions on their behalf, then an application will need to be made to the Court of Protection so that a deputy can be appointed to make these decisions.

How long does a deputyship application take?

A deputyship application usually takes between five and eight months to complete. However, in certain circumstances an interim or emergency application can be made to the court. It is therefore important to begin the process as soon as possible.

Who can be appointed as a deputy?

A deputy may be a friend or relative of the person who has lost mental capacity, or a professional such as a solicitor.

To become a deputy the applicant must be at least 18 years of age and willing to be appointed as a deputy.

Once appointed, a deputy has a duty to act in the best interests of the person who has lost mental capacity and to provide an annual report to the court. The report will include information about the decisions made on behalf of the person who lacks capacity and details of any financial transactions made on their behalf. The deputy may also be asked to provide evidence such as bank statements or receipts.

We have a wealth of experience in Court of Protection applications and our dedicated legal team will guide you through the process, step by step. We can also provide legal assistance with ongoing issues such as the completion of the annual report to the court.

So, if you have been advised that a member of your family has lost the mental capacity to make their own decisions and there is no power of attorney in place, please arrange an appointment to discuss the options available to you.

Did you know?

A person who still has mental capacity can register for lasting powers of attorney, to pre-emptively assign a trusted individual to make their decisions and prevent the Court of Protection from needing to be involved. Click here for more information.

Court of Protection - what you need to know