Court of Protection

This important arm of the High Court is responsible for overseeing the financial and welfare decisions and management undertaken on behalf of some of the most vulnerable individuals our society sees. We understand how the Court of Protection rules, the Mental Capacity Act 2005 and its associated code of practice affect our work in this arena and, most particularly, we can explain what the principles of best practice are that govern any decision-making undertaken on behalf of those subject to the regime.

Where an individual is assessed as having lost the capacity to manage generally, or specifically in relation to particular tasks, our team can guide potential deputies through the myriad of Court of Protection forms that need to be completed.

There are a variety of applications that can be made to the Court of Protection, including:

• Deputy appointments, giving you the authority to make decisions on a person’s behalf in relation to
  • Property and financial affairs allowing you to manage the day-to-day transactions such as paying utility bills, arranging direct debits and benefits
  • Health and welfare allowing you to make day-to-day decisions on care arrangements
• A Statutory Will or codicil: there are various reasons to request a Will (or codicil) on a person’s behalf and the Court will consider all circumstances in applying the best interest test
• Deprivation of liberty: this is a complex area that concerns the deprivation of a person’s liberty engaging the person’s rights under Article 5 of the European Convention on Human Rights (ECHR). There are two types of applications that the Court will consider, with their own procedures, resulting in a vastly complex area of law. Should you become concerned over a person’s confinement in a restricted place without the person being able to consent, a Court application might be required. 
• Gifting: regardless of the type of authority (whether EPA, LPA or deputyship) the law placed restrictions over the level of gifting that can be carried out on the persons behalf. An application to the Court can give you permission to make large gifts, ensuring you do not breach your authority and/or be deemed to not act in that persons best interests. Gifting outside the scope of your authority, can result in an investigation being carried out by the Office of the Public Guardian leading to your authority being removed. 

Whether you wish to make an application to become a deputy or if you are a deputy and you seek a further application, our team are here to assist you in making the right application in the best interest of your family member or friend.

Appearing in the Court of Protection

The Court of Protection and its judges are well known for their approachability and sensitivity, and the process on the whole is well suited to individuals with cause to address the Court. Attending Court under any circumstances is nevertheless a daunting process, and if you find yourself requested to attend Court we can happily provide support in and out of Court, reassure you and ease your burden.

Panel deputy

Some families may wish to seek an appointment of a professional and experienced deputy to work with them to make the decisions required under an order of the Court of Protection.

Elizabeth Young, head of our Private Client team, has been a Court of Protection appointed panel deputy since 2001 and is now one of just 60 panel deputies across the UK entrusted with Court of Protection referrals. Elizabeth’s role is to manage the financial affairs of individuals who no longer have capacity to manage their affairs through brain injury, mental illness, or age-related dementia. Elizabeth currently manages a portfolio of around 30 deputyships involving clients from all walks of life, of all ages, and with a range of individual needs and circumstances.

Abuse and mismanagement by attorneys and deputies

Sadly, cases of financial abuse and the mismanagement of finances, through ignorance or deliberate steps, are still common occurrences. If you are concerned that an attorney is not acting in the best interests of those they care for, or a deputy is overstepping the limits of their authority, then we can also advise on what steps can be taken to reclaim the situation.

This can be especially difficult and traumatic where family members are concerned and we have the ability and sensitivity to ensure that disputes of this nature are resolved collaboratively and without escalation of already emotionally charged situations. Where there has been serious wrong doing, we work with all the relevant agencies to recover misappropriated funds, overcharges and, in some cases, ensure that the culprits are brought to justice.

Court of Protection Frequently Asked Questions

What is the Court of Protection?

The Court of Protection was created by the Mental Capacity Act 2005 (MCA) to help people who do not have the mental capacity to make their own decisions about things like their financial affairs, health, welfare, and medical treatment.

It has wide powers to assess a person’s mental capacity, make decisions on behalf of people lacking mental capacity, and authorise their loved ones to make decisions on their behalf.

What is mental capacity?

Under the MCA, everyone is presumed to have mental capacity and can make their own decisions, for example, about where to live, their day-to-day activities, and how to manage their own finances.

A person lacks mental capacity where they become unable to make their own decisions when they need to be made. Common reasons for a lack of mental capacity include a brain injury, an illness such as dementia, severe learning difficulties, or mental health problems.

Before establishing that someone lacks mental capacity, they should be helped to make the decision (for example, by finding alternative ways to communicate).

What does a mental capacity assessment involve?

The MCA sets out a strict two-stage test to assess whether a person lacks mental capacity:

1. The person must have an impairment of the mind or brain. This could be an illness, injury, or be caused by external factors such as alcohol or drug use
2. The impairment must mean the person cannot make a decision when it needs to be made. This is important because while someone may be able to make certain decisions (such as what to buy at the local shop) they may be unable to make others (such as whether to take out a bank loan)

A person cannot make a decision where they cannot:

• Understand information needed to make a decision
• Retain or process that information
• Weigh up the information and consider the pros and cons
• Communicate their decision (even using alternative means such as sign language)

What does the Court of Protection do?

The Court of Protection can make a number of orders and decisions on behalf of people who lack mental capacity, including:

• Mental capacity assessments
• Deputyship Orders – to appoint one or more Deputies to make decisions on a person’s behalf
• Statutory Wills – where a person lacks capacity (called “testamentary capacity”) to make their own Will, the Court can make a Statutory Will for them
• Urgent decisions – where a Deputyship application is currently progressing but an immediate decision needs to be made
• Emergency decisions – where a person’s welfare is at risk, for example, where they require immediate medical treatment but cannot consent due to a lack of mental capacity
• One-off decisions – for example, where a Deputy needs to make a decision not covered by their Deputyship Order
• Authorisation of the sale of jointly owned property – by appointing someone to act on behalf of the incapacitated owner
• Deprivation of Liberty Orders – to authorise the restriction of someone’s activities and movements if it is in their best interests

The Court of Protection can also resolve disputes, including:

• Objections to the registration of a Power of Attorney
• Challenges to Deprivation of Liberty Orders
• Deputyship disputes

Who else can make decisions for someone who lacks mental capacity?

It is possible to plan for potentially losing your mental capacity by leaving legal documents setting out your wishes and appointing loved ones to make decisions on your behalf if necessary. Such documents include:

• Lasting Power of Attorney (LPA) – LPAs appoint 1 or more Attorneys to make decisions on a person’s health and welfare and/or their property or financial affairs
• Enduring Power of Attorney (EDAs) – only EDAs made before 1 October 2007 can be used. These documents appoint 1 or more Attorneys to make decisions on a person’s financial affairs
• Advance decision – also known as Living Wills, Advance Decisions are legal documents which set out a person’s wishes to refuse medical treatment (including life-saving treatment) in the event they cannot consent themselves when needed

Many people make one or more of these documents upon being diagnosed with an illness such as Alzheimer’s. However, you may wish to create a Power of Attorney or Advance Decision when you come to make a Will to ensure your best interests are protected and to save your loved ones the stress of having to apply to the Court of Protection.

How do you apply to the Court of Protection?

Court of Protection applications can be fairly complicated requiring a number of different forms.

Typically, you will need to submit form COP1, the Court of Protection application form, which sets out the type of application you want to make, your details, and the details of the person the application relates to.

You will probably also need to submit an assessment of capacity form (COP3) which must be completed by you and a practitioner such as a medical professional, mental health professional, or psychiatrist.

There will likely be other forms to complete depending on the type of application you are making.

Our Court of Protection solicitors have extensive experience supporting clients through the application process, ensuring the relevant forms are completed correctly and avoiding any unnecessary delays.

What is Court of Protection Deputyship?

A Deputy is someone authorised by the Court of Protection to make decisions on behalf of a person who lacks the mental capacity to decide for themselves when needed.

There are 2 types of Deputy:

1. Property and Financial Affairs Deputy – does things like manages a person’s bank accounts, organises their pension, and pays their bills
2. Personal Welfare Deputy – makes decisions about things like a person’s day to day activities, care, and medical treatment

You can either be one type of Deputy or both and if your application to become a Deputy is accepted, the scope of your powers will be set out by the Court in a legal document.

If you need to make a decision which is beyond the scope of your powers, you can apply to the Court for a one-off decision.

How do I become a Court of Protection Deputy?

The forms you need to complete to become a Deputy include:

• Court of Protection application form (COP1)
• Assessment of capacity form (COP3)
• Deputy’s declaration (COP4) – providing details of your personal financial circumstances, why you wish to be a Deputy, and undertaking to act according to your duties and responsibilities as a Deputy
• Information form COP1A – to become a property and financial affairs Deputy
• Information form COP1B – to become a personal welfare Deputy

You must also tell certain people you are making a Deputyship application, including the person the application relates to.

How long does it take to get a Court of Protection Deputyship Order?

The Court can take around 2-3 months to process a Deputyship application. If there are any issues with the application or someone objects to your appointment, the process will take longer. However, we will always act swiftly to try and resolve any issues within a reasonable timeframe.

What can a Court of Protection Deputy do?

A Deputy can make decisions for someone when they’re unable to decide for themselves. The scope of your powers and responsibilities as a Deputy will be set out in the Order and there are also general rules under the MCA.

When making a decision for someone, you must:

• Ensure it is in their best interests
• Take into account the decisions the person has made in the past and their previous values, beliefs, and wishes
• Consult other people, such as relatives, close friends, and the person’s care team
• Try to help the person make the decision themselves as much as possible, for example, exploring other ways to communicate

You must not:

• End life-sustaining medical treatment
• Restrain the person, unless it’s for their own safety and in their best interests
• Make a Will or change their existing Will (without an application to the Court of Protection)
• Give gifts unless the Deputyship Order allows you to
• Hold money or property belonging to the person in your own name

Do I need to keep a record of what I do as a Deputy?

Yes – you must submit a report every year to the Office of the Public Guardian (OPG) setting out the decisions you’ve made as a Deputy, including:

• Your reasons for making the decisions and why they were in the person’s best interests
• Who you consulted while considering the decisions
• The person’s finances (if you’re a property and financial affairs Deputy)

What do I do if the Deputyship Order is about to expire?

If the person you are a Deputy for is still unable to make their own decisions, you will need to reapply to the Court of Protection to continue making decisions for them. You can also nominate someone else to act as a Deputy (so long as they agree).

Because Deputyship applications take around 2-3 months, you should apply to the Court of Protection before the end of the current Deputyship Order to ensure you can continue acting for your loved one uninterrupted.

What is a Statutory Will?

When a person lacks mental capacity, they may be unable to sign and execute important legal documents, such as a Will.

A person lacks the capacity to make a Will (called lacking testamentary capacity) where they do not understand:

• What making a Will means or what its effect will be
• How much money or property they own
• How the Will might affect anyone named as a Beneficiary, anyone left out of the Will, or anyone who would otherwise inherit under the Rules of Intestacy

If a person dies without making a Will, their estate is distributed according to the Rules of Intestacy which may be contrary to what their wishes would have been. As such, the Court of Protection can make a Statutory Will on someone’s behalf where they’ve lost their mental capacity and cannot make one themselves.

How do you make a Statutory Will?

To make a Statutory Will, you must complete and submit several forms, including:

• Court of Protection application form COP1
• Assessment of capacity form COP3, including a medical report
• Witness statement COP24
• Information form COP1C​

You also need to inform certain people, including:

• Any Beneficiaries under an existing Will who would be affected (for example, if they were left out of the Statutory Will)
• Anyone who would inherit under the Rules of Intestacy

We will help you establish who needs to know about your application as well as drafting and sending the notices on your behalf.

If no one objects to the Statutory Will, the Court will decide whether to approve the application and could request further medical information or arrange a hearing if more evidence is required.

For further information, please visit our Statutory Wills FAQ.

I need to make an urgent or emergency decision for someone, what do I do?

The Court of Protection can make urgent or emergency decisions in certain circumstances, for example where the incapacitated person’s welfare is at risk.

You can apply for an Urgent Interim Order where you are applying to be a Deputy but your appointment has not yet been approved and you need to make a one-off, time-sensitive decision. For example, you need to pay a person’s care fees.

You can apply for an Emergency Order where there is a risk to someone’s welfare. For example, they require immediate medical treatment but cannot consent due to a lack of mental capacity.

Can I sell my house if my joint owner lacks mental capacity?

When a person lacks mental capacity, they’re often unable to sign important legal documents and, as such, cannot consent to the sale or transfer of property.

If you jointly own property with someone who lacks mental capacity, you can apply to the Court of Protection to appoint someone to act on behalf of your joint owner.

You will have to make an application even if you’ve already been appointed as a Deputy.

How do I get started with my Court of Protection application?

Get in touch with our specialist Court of Protection solicitors today to discuss your matter by giving us a call at your local branch in Alconbury, Peterborough, Birmingham, Spalding, or Nottingham.