It can be an extremely challenging time if a family member loses capacity, especially if you require authorisation from the Court of Protection to deal with matters on their behalf. However, our expert knowledge of the Mental Capacity Act 2005, the Civil Procedure Rules and our experience of Court of Protection applications enable us to deal with these matters as quickly and efficiently as possible.
Our expert team can assist with deputyship order applications, the management of affairs, obtaining authorisation of gifts made by Attorneys and many other Court of Protection matters.
The Court of Protection in the England and Wales is a specialised court that makes decisions on financial or welfare matters for people who can’t make decisions at the time they need to be made, because they ‘lack mental capacity’.
The court safeguards the interests of vulnerable individuals who cannot make decisions for themselves, balancing the need to protect them while respecting their autonomy and rights.
The court was established under the Mental Capacity Act 2005 and most cases are heard by district judges and a senior judge but can sometimes be heard by High Court judges. Cases can sometimes be transferred to a local court for hearing.
The primary purpose of the Court of Protection is to protect and make decisions on behalf of individuals who are deemed to lack the capacity to make their own decisions. This may include decisions related to healthcare, financial matters, or where they should live.
The Court of Protection’s powers include the following:
When making decisions for individuals who lack capacity, the Court of Protection must consider their best interests. This may involve consulting with healthcare professionals, family members, and other relevant parties. It is common for individuals subject to Court of Protection proceedings to have legal representation to ensure their rights and interests are protected.
The court proceedings are generally open to the public to ensure transparency, but there may be cases where some details are kept confidential to protect the individual’s privacy.
Decisions made by the Court of Protection can be challenged, for example if a person believes the decisions are not in the best interests of the individual in question.
One way to avoid the involvement of the Court of Protection is for individuals to set up a Lasting Power of Attorney (LPA) while they have the capacity to do so. An LPA allows you to appoint another person to make decisions on your behalf in the event you lose capacity.
You can choose which decisions can be made on your behalf and to what extent decisions can be made. There are different LPAs, covering property and finances. You can have more than one attorney and can restrict the decisions your attorneys make or have them make all decisions on your behalf, whether separately, together or a mix of both.
At BTMK, our specialists look at your personal circumstances and advise you on the best course of action for your needs.
Read more on our Lasting Power of Attorney page.
A deputyship is a legal arrangement that allows someone to make decisions on behalf of an individual who lacks the mental capacity to make those decisions themselves. The deputy is appointed by the Court of Protection.
Deputyship is typically established for two main areas:
A property and financial affairs deputy is appointed to manage the financial and legal affairs of a person who lacks mental capacity. This includes making decisions related to the person’s assets, income, bank accounts, property, and financial transactions. The deputy is responsible for acting in the best interests of the individual and managing their financial affairs in a responsible and lawful manner.
A personal welfare deputy is appointed to make decisions about an individual’s personal welfare, such as healthcare, accommodation, and medical treatment. This type of deputyship is less common, and the Court of Protection usually grants it when there are complex or contentious decisions to be made regarding an individual’s care and treatment.
Deputyship is often necessary when an individual has not made a Lasting Power of Attorney (LPA) while they had the capacity to do so. An LPA is a legal document that allows someone to appoint an attorney to make decisions on their behalf in the event they lose mental capacity. If an individual does not have an LPA and loses capacity, family members or other interested parties can apply to the Court of Protection to become a deputy.
Deputyship involves significant responsibilities, and deputies are legally bound to act in the best interests of the person for whom they are appointed. The Court of Protection provides oversight and can set conditions and restrictions on the deputy’s authority to ensure the individual’s well-being and interests are protected. It’s important to note that deputyship is a court-supervised arrangement designed to safeguard the rights and interests of individuals who lack capacity to make their own decisions.
The team at BTMK can be appointed as professional deputies and can help with all aspects of Court of Protection instructions. Or if you’re looking after an incapacitated person’s affairs or finances we can help.
The Court of Protection is a specialist Court which makes all decisions in accordance with the Mental Capacity Act. They are there to safeguard and oversee the actions which are taken in respect of individuals who lack the mental capacity to make those choices themselves.
When someone loses capacity, a Deputyship Order can be obtained through the Court of Protection authorising someone to make decisions on their behalf. There are two forms of Deputyship Orders being property and financial affairs, and health and welfare.
The Deputy needs to be someone over 18 and this would usually be a close family member or friend. However, it some cases it may be more appropriate for a Solicitor to be appointed and we can act in this capacity if there is no one else who can apply to be Deputy.
A Solicitor may make an initial assessment and if there are concerns that the person has lost capacity then a medical report would need to be obtained. A capacity assessment is required as part of the Deputyship Order application.
This is a common misconception – there is not an automatic right for a spouse of the person who has lost capacity to deal with their affairs. There may be elements which they are able to deal with, such as accessing joint bank accounts, but there is likely to be limitations to the decisions they can make on behalf of the person who has lost capacity.
Emergency applications can be made to the Court of Protection. However, they will only make the order if they are satisfied that it is a serious situation and there is immediate risk to the person.
The Court of Protection ensures that the decisions made are in the best interest of the person who has lost capacity. For example, an annual report must be completed by a Deputy to show all significant decisions which have been made on behalf of the person who has lost capacity.
Gifts can be made on behalf of the person who has lost capacity. However, there are rules in place in relation to gifts and an application may need to be made to the Court of Protection to authorise the gifts. We can advise when authorisation would be required and assist with the application.
The Court of Protection requires a Deputy to provide security when they are making an application for a Deputyship Order in relation to property and financial affairs. The bond is a form of safeguarding in relation to the assets of the person who has lost capacity. The bond will need to be renewed each year during the Deputy’s appointment.
The person applying to be Deputy can also request the authority to sell a property which the person who has lost capacity owns if it is held in their sole name. However, a further application would be needed to appoint the Deputy as a Trustee if the property is held jointly with another person.
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