These pages are not intended to offer legal advice.
What is the Court of Protection?
The Court of Protection is a special court that only deals with cases involving people who lack or might lack capacity. The Court makes decisions where there is a dispute about a person’s capacity to make a specific decision, or a disagreement about what is in their best interests, for example where they should live, or what care they should have. In some cases, the Court of Protection will also decide if a person’s freedom should be restricted to keep them safe; for example, the Court might decide who the person can or can’t see, or whether they can go out on their own without support.
It is often someone that wants to make a decision for another person that applies to the Court. This could be an organisation like a council or an NHS Trust, which wants to give the person care or treatment. It could be a family member who applies, for authority to make regular decisions about spending the person’s money, in their best interests. It could be the person themselves who applies, to challenge a decision someone else wants to make on their behalf.
If the person can’t apply to the Court themselves, an application can be made for them (typically by a specially trained solicitor appointed for the person). There are costs attached to applying to the Court.
You can read more about the Court of Protection on the Government website. If you are interested in learning more about the Court, you can also watch episode three of the MCA Mini-Series called ‘Court of Protection’, available on YouTube.
Court appointed Deputies
Sometimes a lot of regular decisions need to be made on a person’s behalf. For example, if a person lacks capacity to manage their money, decisions will need to be made about buying things for them, paying their bills, applying for benefits, or perhaps opening a bank account. Without existing authority to make these decisions in the form of a power of attorney, an application to court is usually needed to make decisions on the person’s behalf. For repeat decisions like this, it’s not practical to apply to the Court every time a decision is needed, so instead someone can apply to be the person’s Deputy.
Only the Court of Protection can appoint someone to act as a Deputy on behalf of a person who lacks capacity. Being a Deputy allows the person appointed by the Court to make regular decisions on behalf of a person who lacks capacity, without the need for repeated applications to court. Deputies are usually appointed to make decisions about property and finances, but can also be appointed to make decisions about health and welfare.
It is usually a family member or friend who applies to be a Deputy, but sometimes a professional applies. The professional could be a solicitor, accountant or member of a local authority team who is specifically employed to act as a professional Deputy. Professional Deputies charge a fee.
Anyone applying must meet the requirements for becoming a Deputy, and fill in an application form. The application form and supporting information must be sent to the Court of Protection, with an application fee. Before the Court decides whether to appoint a Deputy, it needs evidence that the person can’t make for themselves the decision(s) that the Deputy wants to make on their behalf. The Court will usually decide about the deputyship on the basis of the application form and supporting information, without a court hearing. You can read more about how to apply to be a Deputy, and how much it costs on the Government website.
If the Court agrees an application to act as Deputy, they send a Court Order to the Deputy confirming their role and any limits on how they can act. The Deputy will need to give a copy of the Court Order appointing them when they want to make decisions for the person; for example, they might send a copy of the Order to the person’s bank, so that they can use the money in it to pay the person’s bills. The Deputy has to give yearly reports to the Office of the Public Guardian (OPG) explaining how they have acted for the person over the last year. For more information on the OPG, please go to Office of the Public Guardian Government website.
For more information on Deputies, please go to: Deputies: make decisions for someone who lacks capacity: Overview on Government website. Anyone thinking about applying for deputyship should consider getting independent legal advice.