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Court of Protection

What is the Court of Protection?

The Court of Protection is a specialist Court that can make decisions for people who lack the mental capacity to make decisions for themselves. The Court can also appoint someone (a Deputy) to make those decisions.

If someone lacks capacity to make a decision and they do not already have a Lasting or Enduring Power of Attorney in place, it may be necessary for an application to be made to the Court of Protection for a Deputy to be appointed.

Someone might lack capacity to make decisions for any number of reasons. That could include a traumatic brain injury arising from a birth injury, road traffic or other accident. It could arise from a severe learning disability, a degenerative condition such as Alzheimer’s, dementia or from a stroke. The lack of capacity may be permanent or it may fluctuate.

Depending on the extent of someone’s capacity and the complexity of the decision, it is possible to both lack the mental capacity to make one decision but retain capacity to make another decision. For example; you might lack capacity to manage complex financial affairs but retain capacity to make a Will.

An assessment of someone’s capacity must therefore be specific to the decision that needs to be made. Those decisions can be varied and wide ranging and can include:

Property and financial affairs
Making a Will
Making a gift
Getting married or divorced
Taking or defending legal proceedings
Receiving care
Medical treatment
Where you live

The Mental Capacity Act 2005 confirms any decision made for someone who lacks capacity to make that decision themselves, must be in that person’s best interests – they must therefore be at the centre of all decision-making. Indeed, just because someone lacks capacity to make a decision, does not mean they should not be consulted and involved in the decision – it is essential their wishes and feelings are known and respected where possible.

Who can be a Deputy?

A Court of Protection Deputy can be a lay person (a family member or other individual) or they can be a professional (usually a Solicitor).

To be appointed as a Deputy you must be:

Over the age of 18 years
Of sound character (criminal convictions or bankruptcy can be a barrier), and
Either have a close personal connection to the individual (for example a family member) or be a professional.

There are two main types of Deputy:

Property and affairs

This Deputy will manage an individual’s financial affairs. That can include paying bills, managing savings and investments, paying tax, buying and selling property, employing care teams etc. They cannot make decisions about an individual’s welfare or medical treatment without specific authority from the Court.

Personal Welfare

Subject to the extent of the authority granted by the Court, this type of Deputy can make decisions in relation to medical treatment, living arrangements, day-to-day care etc. They do not have authority to manage that person's financial affairs without specific authority from the Court.

What is the role of a financial Deputy?

Most Deputies appointed by the Court of Protection are property and affairs Deputies. Essentially, they are appointed to manage the financial affairs (assets) of someone who lacks mental capacity to manage their own affairs. The assets could include:

All your income and expenditure (including state benefits, pensions etc)
Savings
Investments
The house you live in
Any holiday or second homes
Any investment properties
A business
Your other assets (jewellery, cars etc)

The role of a financial Deputy can vary significantly depending on the assets and financial position and needs of the person who lacks capacity. Some people may have straightforward financial affairs. Others may have very complex financial arrangements and care needs. The role can therefore include:

Receiving all income and paying all expenditure (utility bills etc)
Checking you are receiving all state benefits / statutory funding you are entitled to
Ensuring any properties / other relevant assets are maintained and insured
Buying and selling properties
Renting properties
Building and adapting properties (usually where a home needs to be made accessible) to include entering in to contracts with builders, architects etc.
Buying and selling vehicles to include arranging for them to be adapted
Employing carers and arranging payment of their tax, National Insurance and pensions
Purchasing, maintaining and insuring equipment (wheelchairs, hoists, prosthetic limbs, communication aids etc)
Appointment of a financial advisor to manage investment portfolios
Ensuring tax returns are prepared, filed and tax paid
Liaising with case managers, therapy teams and treating clinicians and ensuring they are paid
Preparing and monitoring budgets
Ensuring lifetime sustainability of funds where possible / appropriate

Just because someone is assessed as lacking capacity to manage their property and affairs, does not mean they can’t potentially manage any of their own money. It may be someone lacks mental capacity to manage the more complex aspects of their finances (employing carers, managing investments, paying tax) but they are able to manage small day-to-day or weekly budgets. They might have capacity to have a bank account, receive their own state benefits, pay their utilities and buy their own food. Some individuals however may not have capacity to manage any funds at all and will need someone to make every financial decision for them.

Being assessed as lacking capacity to manage your property and affairs does not therefore mean you lose all control over your finances. The Mental Capacity Act 2005 makes it very clear that:

Decisions can only be made for someone else if they lack capacity to make that decision themselves

They should be provided with all reasonable support to enable them to make their own decision

Any decisions made for another should be the least restrictive of their rights and freedoms and in that person's best interests

It’s important their wishes and feelings are ascertained where possible, that includes speaking to those who might be able to assist with this such as family members etc

What is the Office of the Public Guardian?

The Office of the Public Guardian (OPG) is an agency of the Ministry of Justice. The role of the OPG is to protect the interests of people in England and Wales who may not be able to make decisions for themselves.

The role of the OPG includes:

Supervising Deputies appointed by the Court of Protection
Maintaining a register of and supervising Attorneys appointed under an Enduring or Lasting Power of Attorney
Investigating concerns or complaints against Attorneys or Deputies

All Deputies appointed by the Court of Protection are required to submit an annual report to the OPG. Where financial Deputies are concerned that report includes:

Details of all significant decisions made in the preceding year
Details of the extent the person who lacked capacity was involved in the decision and who else was consulted
Details of all assets being managed by the Deputy
A breakdown of all income received and expenditure made in the preceding year
Details of charges raised by professional Deputies

What is a security bond?

A security bond is a type of insurance that protects the finances of a person who lacks capacity to manage their own financial affairs and has a Court appointed financial deputy.

The Court Order appointing a financial Deputy will include a provision specifically requiring a security bond is put in place.

The bond guarantees to pay financial losses suffered by someone due to a failure on the part of the financial Deputy.

The Court will set a level of security based on a number of factors including the amount, type and value of assets the Deputy is required to manage.

The need for a security bond applies to both lay and professional Deputies.