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FAQs: Court Of Protection – The Basics

Specialist community care lawyers in Sussex and Surrey answer the most frequently asked questions about the Court of Protection.

  1. What is the Court of Protection?
  2. I have also heard the Office of the Public Guardian mentioned – is it different to the Court?
  3. How do I apply to the Court of Protection?
  4. I think that someone I know is financially abusing a friend/relative of mine. What do I do?
  5. When would the Court appoint a Deputy?
  6. How would someone lose mental capacity?
  7. Who decides if someone lacks capacity?
  8. If someone lacks capacity does that mean they can’t make ANY decisions themselves?

What is the Court of Protection?

The Court of Protection helps people who are mentally incapable of making their own decisions. It does this by making decisions for them about their money, property, health or welfare.

The Court can also give these powers to someone else if there is a need for decisions to be made on an ongoing basis because the person can no longer make their own decisions. If the Court gives these powers to someone else, they will be known as a Deputy.

I have also heard the Office of the Public Guardian mentioned – is it different to the Court?

The Court of Protection and Office of the Public Guardian (OPG) are part of the same process and their names are often used interchangeably. The simplest explanation (for these purposes) is that the Court makes all the decisions and the OPG handles the ongoing administration. The two bodies work together, but with separate defined roles.

How do I apply to the Court of Protection?

If someone you care for loses the ability to make their own decisions you can apply to the Court of Protection for permission to make decisions for them. To apply, there are some forms that will need to be filled in and a doctor will need to confirm to the Court that the person cannot make decisions for themselves.

It is very important that those forms are filled in properly or they will be sent back. It can take a long time to complete the forms and it is important that you know exactly what powers you will need to apply for. For example, you might only need the power to help your friend or relative to manage their money, or to make decisions about what treatment they receive in hospital. Or you might need a much more general power to help them with all their financial and other decisions.

We can help you to work out which forms you will need and we can complete them for you to make sure that they can be processed by the Court of Protection without delay.

I think that someone I know is financially abusing a friend/relative of mine. What do I do?

You could contact your local Social Services and ask to speak to someone in their vulnerable adults’ team. You can also report the issue to the Office of the Public Guardian if there is an Attorney or Deputy involved. The OPG will investigate and may support or make an application for the Attorney or Deputy to be removed.

We are very experienced in helping people in this situation and can also advise about whether an application to the Court of Protection could help, so contact us for advice.

When would the Court appoint a Deputy?

A Deputy is appointed when an individual’s affairs need to be looked after because that individual is not capable of making decisions for themselves.

Every individual has the right to appoint someone of their choice in advance to look after their affairs on their behalf, should they at a later stage lack the capacity to manage their affairs themselves. This is achieved by making a Lasting Power of Attorney (LPA). If someone has not made an LPA and they lose capacity then there needs to be an application to the Court of Protection asking the Court to appoint a Deputy to act in the same way for that individual as an attorney would.

How would someone lose mental capacity?

Someone loses their mental capacity in a variety of ways. The most common of these is when an elderly client is suffering from one of the various forms of dementia in a moderate to advanced stage. Other common ways in which someone lacks capacity include clients who have suffered from acquired brain injuries, clients who have had a severe stroke, clients who suffer from severe learning disabilities and clients who suffer from severe forms of autism.

In order for a Deputy to be appointed, a client must lack the capacity to appoint an attorney for themselves under an LPA, and must also lack the capacity to manage either their financial property or affairs in general and/or their personal welfare decisions.

Who decides if someone lacks capacity?

Ultimately, it is the Court who decides. Initially a solicitor being asked to, say, prepare a Lasting Power of Attorney for a client may have concerns about the clients capacity and will seek medical evidence from a professional such as a GP or consultant. If the medical evidence states that person lacks capacity the Court will normally accept this as a reason for the appointment of a Deputy.

If someone lacks capacity does that mean they can’t make ANY decisions themselves?

No, not necessarily. The legal tests for capacity are very much ‘issue specific’. As an example; someone who lacks the capacity to manage their financial affairs in general may still have the capacity to make certain day to day purchases.

Likewise, someone who lacks capacity to understand and arrange for the payment of their care fees may have capacity to decide where they live and are cared for.

If you have any further questions about the Court of Protection, or any other aspect of community care law, then contact our Community Care law team on 01273 609911, or email info@ms-solicitors.co.uk.

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