Court of Protection
Mental incapacity can affect any one of us, at any point and at any age. This can be through a progressive condition such as dementia, or by a serious brain injury that occurs during our lifetime and results in a loss of mental capacity. The person affected will need someone to act on their behalf to manage their affairs.
What is the Court of Protection?
The fundamental function of the Court of Protection is to make decisions and grant orders on behalf of incapacitated persons who are unable to make decisions about their financial or health and welfare affairs.
The Court is responsible for: deciding whether someone has the mental capacity to make a particular decision for themselves; appointing deputies to make ongoing decisions for people who lack the mental capacity; and handling urgent or emergency applications.
What provision has the incapacitated person put in place during their lifetime?
If you are seeking to help someone who lacks mental capacity, the first point to check is whether or not they have in place an Advance Decision, or a Lasting Power of Attorney (“LPA”) or an Enduring Power of Attorney (“EPA”). For more information about Advance decisions, LPAs and EPAs please click here.
If the person affected already has in place an Advance Decision or LPA / EPA then they don’t necessarily need a deputy, unless there is concern about the validity of the document, or where there is a dispute or concern about the conduct of the appointed attorney(s).
Where there is no provision in place for the incapacitated person
If the person affected does not have an Advance Decision, or LPA/ EPA in place then an application to the Court of Protection will be necessary to obtain a Deputyship Order – depending on the nature and type of authority needed. If the Order is granted, the Deputy will be authorised by the Court of Protection to make decisions on the incapacitated person’s behalf.
Types of Deputy
There are two types of Deputy and these are:
Property and financial affairs deputy
You’ll do things like pay the person’s bills, sell property in order to fund care home fees, or organise their pension. The most common application to the Court of Protection is for property and affairs deputyship. Once appointed as Deputy, you will have ongoing reporting obligations under the supervision of the Office of the Public Guardian.
Personal welfare deputy
You’ll make decisions about life sustaining and/or medical treatment and how someone is looked after. However, applications for welfare deputyships are less successful than those appointed as deputies for property and finances. Cases show that the Courts are reluctant to appoint such deputies unless in the most serious of cases or where a series of decisions are needed over time concerning the person affected.
Our Court of Protection Services
We can advise and help you to become a deputy if that is appropriate, depending on the circumstances of the matter and the nature and type of authority needed. It may be more appropriate to prepare an application for a “one-off” order for a single important decision where an application for a full deputyship order would be disproportionate.
We can provide practical help, advice, and assistance with the following:
- Applying to be a Court of Protection deputy – for one type, or both types of deputyship;
- Provide ongoing management of interim orders and support for deputies;
- Apply for a single “one-off” order if appropriate;
- Advice to attorneys and deputies already appointed;
- Statutory Wills;
- Discharge of Deputyship Order and security bond following death of the person affected;
- Referral to the Office if Public Guardian - safeguarding reporting where there is suspected abuse of a vulnerable person.
“My Mother being 103, recently moved to a Care Home and is suffering from dementia following a stroke. Watkins Solicitors made the proceedings so much easier for me, whilst remaining professional they showed sympathy and understanding, explaining things to me in a clear and precise manner. Any question I asked was always met with an answer, I think they displayed a sound knowledge of their subject. As I say, I don't believe anyone could have done more”.