What is the Court of Protection?
A Court that makes decisions about financial (and welfare) matters when a person is incapable of making decisions for themselves and there is nobody else who can legally make decisions for them.
Why can’t my next of kin make decisions for me?
The phrase ‘next of kin’ is common but has no legal status in relation to financial decisions. The only person able to manage your finances, if you lose the capacity to do so for yourself, is a Court of Protection Deputy or an Attorney acting under a registered Lasting or Enduring Power of Attorney.
What is a Court of Protection Deputy?
This is a person appointed to make decisions on behalf of somebody who is unable to do so themselves because they lack mental capacity.
Who can be a Deputy?
Anyone can act as a Deputy (more than one if appropriate). It could be a family member or a friend. It can also be a professional person such as a lawyer. In complex cases, particularly those involving large awards of damages, the Court may prefer to appoint a professional Deputy.
If you don’t know anybody that is able, suitable or willing to act as Deputy, a Partner of Wilson Browne could be appointed.
What’s the difference between a Property and Affairs Deputy and a Health and Welfare Deputy?
A Property and Affairs Deputy can only make decisions about matters of a financial nature whereas a Health and Welfare Deputy can only make decisions about health and welfare issues; such as deciding where someone lives and the care and treatment they receive. The appointment of a Health and Welfare Deputy is unusual; it generally happens when all other options have been explored.
What is ‘incapacity’?
The first step is for the Court to be satisfied that the person lacks capacity to make certain decisions for themselves and that those decisions must now be made for them. A Capacity Report must be prepared.
The person making the application usually completes the first part of the Capacity Report. It sets out what decisions need to be taken, such as investment of money and sale of property etc.
The report is then given to an appropriately qualified person such as a doctor who will assess the person’s ability to make those decisions for themselves. The professional will then record their views in the second part of the report. If the professional agrees that the person is incapable of making the necessary decisions, the Court application can then proceed.
Will the Deputy have to show their fitness to act?
The Deputy must make a Declaration to the Court, that they will:
- Provide personal information. This includes their employment status and whether they have been convicted of a criminal offence.
- Provide details of their personal circumstances. This includes answering questions about being refused credit, having outstanding judgment debts and being bankrupt.
- Provide personal undertakings. These include agreeing to act with due care and diligence and not using their position to benefit personally. They must also maintain confidentiality, regularly visit the incapacitated person and keep accounts.
- Provide a personal statement setting out their reasons for wanting to act as Deputy.
- Make a declaration that all the information given is true.
This is just some of the information and commitment that the Court requires of the Deputy.
What powers will the Deputy have?
Only those which are set out in the Order appointing the Deputy or in any later Orders the Court makes. The powers will vary depending on the individual needs of the incapacitated person.
Does the Deputy have complete control over the person’s affairs?
No, the Deputy must abide by the Court’s Orders. They must also work within the rules set out in the Mental Capacity Act 2005 and the Code of Practice that accompanies this Act.
How does the Judge decide whether a Deputy should be appointed?
Once the Court has issued the papers and the relevant people are notified of the application, all of the papers will be given to the Judge. If nobody has objected to the appointment, the Judge will consider all of the papers and if satisfied that a Deputy is needed, an Order will be made. The contents of the Oder will vary depending on the decisions and actions needed.
How long will it take?
Unless there are very urgent issues to address, it could take several months from the date on which the papers are issued to the Court before the Order appointing a
Deputy is made. If the matter is urgent from the outset, there is a special procedure that can be followed.
Are Deputies supervised?
Yes. The Court of Protection sets the level of supervision, which may range from none to ‘close supervision’. The Public Guardian then supervises the Deputy. The Public Guardian can call on the Deputy to account for their actions at any time. The Deputy must also file an annual account showing how funds are cared for, the decisions they have made and the extent to which they have involved the incapacitated person in those decisions.
Are Deputies insured?
All Deputies must have a ‘security’ in place. The Court sets the level of the security and the usual way of arranging this, is through an insurance policy. The policy is renewable annually and the premium is paid from the funds, which the Deputy manages.
How long will the Deputy stay?
If a person lacking capacity regain that capacity, the Deputy can be discharged. Otherwise, their role will end upon death of either party or if the Deputy chooses to retire.
Can a Deputy sell a person’s property?
If the property is in the sole name of the person, yes. If the property is a jointly owned property a separate application must be made to the Court for a new Trustee to be appointed. This usually has to be someone different to the Deputy. A solicitor from Wilson Browne could be appointed as a Trustee if there is nobody else willing or able to act. There are fewer legal requirements to meet if a solicitor is appointed rather than a lay person.
Can the Court of Protection make a Will for someone or let gifts be made from the funds?
Yes. In certain circumstances the Court can make what is known as a statutory Will or authorise gifts over and above those that the Deputy can make. These are however separate applications to the Deputyship application.