Court of Protection and mental capacity
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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.
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.
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.
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.
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.
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.
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).
The MCA sets out a strict two-stage test to assess whether a person lacks mental capacity:
A person cannot make a decision where they cannot:
The Court of Protection can make a number of orders and decisions on behalf of people who lack mental capacity, including:
The Court of Protection can also resolve disputes, including:
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:
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.
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.
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:
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.
The forms you need to complete to become a Deputy include:
You must also tell certain people you are making a Deputyship application, including the person the application relates to.
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.
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:
You must not:
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:
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.
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:
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.
To make a Statutory Will, you must complete and submit several forms, including:
You also need to inform certain people, including:
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.
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.
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.