Our Community Care solicitors answer frequently asked questions from clients on the Court of Protection, Deputyship Applications and making a Lasting Power of Attorney
The Court of Protection was created by the Mental Capacity Act 2005. The Court’s role is to make decisions regarding the property, financial affairs and personal welfare of people who lack mental capacity to make those decisions for themselves. The Court appoints Deputies to make day-to-day decisions for those lacking capacity and considers one-off applications regarding complex or contentious decisions, usually about personal welfare issues.
To make a Lasting Power of Attorney (LPA) a person must have the mental capacity to understand the powers they are giving their Attorneys and to choose their own Attorneys. If someone has lost mental capacity, they cannot make an LPA. An application to the Court of Protection for a Deputy appointment may be necessary instead.
The Court of Protection deals with decision making on behalf of children and adults. In the case of children, parents make most decisions. A Deputy might be required where the child has complex needs and is involved in Personal Injury Litigation or has a Personal Injury Settlement. Court of Protection Deputies for property and finance are often appointed to give adult children the authority needed to manage their elderly parents’ affairs and help them pay for their care.
A Deputyship Order lasts for as long as the individual concerned lacks capacity and needs someone to make decisions on their behalf. A Deputyship will usually last for the lifetime of the person lacking capacity. However, the person’s specific capacity should be regularly reviewed, and the Deputy appointment should be terminated if the person becomes able to make their own capacitated decisions.
You don’t have to instruct a lawyer to make an application to the Court of Protection but the process can be complicated and long-winded, so you may prefer to have legal advice and guidance. A specialist solicitor will ensure that the application is completed properly and that the people who must be notified about the application are told in good time. If the application is contentious (because someone objects) and you have to go to Court then you will benefit from legal representation at any hearings.
You can contact the Court of Protection by phone on 0300 456 4600 or email firstname.lastname@example.org. All applications must be submitted to the Court in paper form by post. You can find the address for the Court of Protection on the government website.
A Deputy is appointed by the Court of Protection to make decisions on behalf of someone who has lost or lacks capacity to make decisions for themselves. A Deputy is needed when the person lacking capacity did not or cannot make Lasting Powers of Attorney appointing someone of their choice to make decisions for them.
Deputies can be appointed by the Court of Protection to deal with property and financial matters or with personal welfare issues on behalf of the person lacking capacity. As a property and finance Deputy, you might manage bank accounts, pay the person’s care fees, household bills, etc. You may also need to buy or sell a property for the person to live in. As a personal welfare Deputy, you can make decisions about where the person lives, the care they receive and some decisions about medical treatment.
Any adult over the age of 18 can be appointed as a Deputy provided that they meet a number of conditions such as not having a criminal record or not being declared bankrupt. Some are professional or “panel” Deputies; a solicitor who is chosen by the Court from a list of approved people. Lay or non-professional Deputies are usually a relative of the person who has lost capacity.
A Personal Welfare Deputy is appointed by the Court of Protection under Section 16 of the Mental Capacity Act 2005 to make decisions about care, support and health issues on behalf of the person who lacks capacity (“P”). Personal Welfare Deputy appointments are far less common than Property & Finance Deputy appointments. The MCA Code of Practice suggests that Deputies for personal welfare will only be required in the most difficult of cases. The underlying expectation is that health and social care professionals and P’s family can usually settle matters between them using the Best Interest process at a local level; and if not, then a stand-alone application can be made to the Court.
Yes, this was the case of Re: Lawson, Mottram and Hopton in 2019. The Vice President of the Court of Protection, HHJ Hayden, considered a challenge brought by a group of parents of learning disabled young adults who were concerned about how the Court interprets the MCA 2005 and its Code. The parents had hoped that their test case would result in more personal welfare Deputy appointments being made: the most recent data suggests that less than 1 in 3 applications succeed. HHJ Hayden noted that the Code is due to be revised, however that “the structure of the Act and, in particular, the factors that fall to be considered pursuant to Section 4 may well mean that the most likely conclusion in the majority of cases will be that it is not in the best interests of P for the Court to appoint a personal welfare Deputy”.
A fee of £365 must be paid to the Court of Protection when the application is submitted. Some people may be eligible to have the fee reduced or waived entirely depending on the level of their savings and income. In addition, a lawyer will charge a fee for assisting with and advice regarding the application. All costs relating to the appointment of a Deputy for property and financial affairs can be recovered from the person who needs the Deputy. Often the prospective Deputy pays the costs and reimburses themselves once the Deputy Order is received and they have access to the bank account of the person who lacks capacity.
The process of being appointed as Deputy can take four to six months. Four forms must be completed, including a capacity assessment by a relevant professional. Once the application is submitted to the Court of Protection, the applicant has a duty to notify certain categories of people, including relatives of the person lacking capacity. After this notification there is usually a two to three month wait for the Deputyship Order to be authorised. If any of the people who have been notified object to the Deputyship application, then the proceedings become contested and can take many more months to resolve.
Martin Searle Solicitors is the trading name of ms solicitors ltd, which is authorised and regulated by the Solicitors Regulation Authority, and is registered in England under company number 05067303.© 2024