Court of Protection – Frequently Asked Questions (FAQs)

• The Court of Protection deals with decisions and actions relating to the Mental Capacity Act 2005. The Court can make specific decisions about someone’s property and financial affairs or their health and welfare when they do not have the mental capacity to make these decisions for themselves.
• Alternatively, the Court may decide to make a deputyship order appointing a Deputy to manage these decisions daily.

We specialise in making applications to the Court of Protection. This includes (but not exhaustively):

• Appointing a “Deputy” who is authorised to make decisions for someone who lacks capacity (property and affairs or health and welfare)
• Making a one-off decision on behalf of someone else (e.g. where someone should live)
• Statutory will (a will made on someone’s behalf who lacks the capacity)
• Seeking authority for a Deputy to do something specific (like buying a property, making a gift or pursuing a claim)
• Discharging a Deputy or removing an Attorney

In short, a Deputy is appointed through the Court of Protection for someone who has lost the capacity to make decisions, under the Mental Capacity Act. This can happen where a person did not appoint an Attorney under a Lasting Power of Attorney when they did have capacity or when an Attorney is discharged or can no longer act.

The appointed Deputy can be a family member, a friend, or where there is nobody else able/suitable and/or willing to act as Deputy, a professional Deputy can be appointed. This can be a professional of choice, or the Court will appoint someone through the Panel of Deputies appointed by the OPG, where this will likely be a professional individual such as a solicitor. There are currently between 50-60 Panel Deputies across the entire UK and at Wilson Browne, we are proud to have our head of team and partner, Vicki Pearce, appointed on the Panel of Deputies.  We also have the option to apply for the Wilson Browne Trust Corporation Ltd to act as a Professional Deputy, ensuring longevity in our services to you.

We have a dedicated team with extensive experience in managing the day-to-day affairs of the individuals with a personal and empathetic approach, ensuring the best interests of the individual are paramount.

A Deputy can be appointed to manage a person’s property and financial affairs, or their health and welfare (or both), but health and welfare Deputies are only appointed in exceptional circumstances.

The role of a Deputy includes (but not exhaustively):

• Making best interest decisions
• Work closely with the individuals, their carers, case managers, financial advisers, healthcare professionals, tax specialists, and advocates
• Accessing and managing their financial property and affairs
• Applying for state benefits
• Paying for care
• Completing tax returns
• Making and reviewing investments
• Arranging for adaptations of properties to suit the needs of the individual
• Submitting an annual report to the Office of the Public Guardian

This would include things like:

• Managing bank accounts or investments
• Buying a property
• Maintaining a property by paying bills, insurance, renovations, and general management
• Selling a property if someone needs to go into a care home
• Paying care home fees
• Applying for and managing benefits

There are several reasons why a property and financial affairs deputy may be required. For example, a vulnerable adult may have lost capacity due to a progressive illness or an incident in their life like a road traffic accident. Some people may require a deputy due to a disability they are born with or as the result of medical negligence or a personal injury.

In most circumstances the Court of Protection favours the appointment of a family member who are more likely to understand what the individual’ wishes and feelings would have been and in a better position to involve the individual in decision making.

However, there are circumstances where the appointment of a family member is not possible or suitable. Maybe there are no family members or nobody suitable and willing to act, or the individual’s assets are so large and complex the family feel that they do not have the relevant expertise to manage them. In these circumstances, a Professional Deputy can be appointed, this could be a solicitor or a Local Authority, in certain circumstances.

Some people experience circumstances where an Attorney or Deputy can no longer act, or they have abused their power and misused the individual’s funds. In this situation the Office of the Public Guardian is likely to investigate, and they may remove the existing Attorney or Deputy and appoint a member of the panel of deputies instead. Vicki Pearce the head of the Court of Protection team at Wilson Browne can be appointed in these circumstances if approached by the Office of the Public Guardian or the Court directly.

• Once the Court have issued their Order, it is important to read carefully what this sets out.
• It will explain what your powers are and your responsibilities. For example, it may clearly set out that you are able to sell a property or not.

• You need to be over 18 years old to apply to be a Deputy and demonstrate good character. For example, do not have a criminal record or have been declared bankrupt.
• You will need to have a good relationship with the person and be able to explain this, along with your involvement in their life.

The OPG is a government body in England and Wales who essentially oversee and supervise the actions of an appointed Deputy. A Deputy must submit annual returns to the OPG accounting for all decisions made and monies spent and received.

The OPG have wide investigative powers and can ask Attorneys and Deputies to account for their actions to make sure that there is no abuse of power. The OPG can bring an application to the Court of Protection, if they feel that the appointed individual(s) has not adhered to their duties and have not acted in the best interest of the person who lacks capacity

• It is a legal document which appoints someone to make decisions on your behalf, and they are known as an Attorney.
• These are made when a person has the capacity to choose an Attorney to manage either their property and financial affairs, or health and welfare, or both.

• A Lasting Power of Attorney is put in place by someone while they have capacity. The individual chooses who their Attorney(s) will be.
• A Court of Protection Deputyship order is where the Court appoints a Deputy to act on behalf of an incapacitated person.

• Usually 6-9 months.

• When applying to become a deputy, you can request authority to sell their property as well. The Court is unlikely to give authority to sell someone’s property without evidence that they will not return home.
• You may need to make a separate application once appointed as Deputy to obtain authority to sell a property if the original order does not allow this.
• A Deputy cannot sell a jointly owned property, and a separate Trustee application will need to be made.

• This is a Will that is made and authorised by the Court of Protection on behalf of someone who lacks capacity to make their own Will. You can make an application for a statutory Will if someone doesn’t have a Will or change an existing Will if there has been a significant change in circumstances.

Yes. There can be more than one Deputy for an individual. Deputies can be appointed jointly where they must agree on all decisions made. Alternatively, you can be appointed jointly and severally.

A Deputyship continues until the court order is revoked, or the individual in questions passes away.

Yes, a Deputy can be removed. The process to change a Deputy can take around 6-9 months. In some cases, emergency applications or an interim order can be made to speed up the process.

When a person has lost capacity to make a will, and it is considered necessary to make a will, an application can be made to the Court of Protection. A Deputy cannot execute a will without the Court of Protections approval. This is called a statutory will.

To start with we need to understand the client’s circumstances, financial position, and family dynamics. Therefore, we are likely to start by speaking to all those who have an interest in the client’s life, this would include their family members, carers, social workers and any other professional involved with that individual.

Once we understand their personal and financial position, we would register with the relevant organisations and financial institutions and get access to the client’s funds so we can make sure they are receiving all the correct income and that all their expenses are being met. We also ensure they are not paying for things they shouldn’t be, for example, any scams or unused subscriptions. We ensure to monitor their bank accounts on a monthly basis.

We manage their property, to include insurance, if they are living there ensuring it is well maintained and that all the utilities are affordable and arrange to undertake any repairs or adaptions or improvements. If the property is vacant, we need to decide whether to sell the property, rent the property or whether it is likely that the client will return home.

We would review a copy of their will to ensure that anything we do during their lifetime does not have a conflicting effect on their wishes and to be satisfied that the will is still in the client’s best interests. If not, we may consider making a statutory will or codicil application.

In reality, any decision you make every day for yourself in respect of your property and financial affairs, however big or small, the deputy may have to make on behalf of the individual. This can include approving a budget for the client’s daily expenses all the way to where the money should be invested and whether a property should be sold.

Someone’s Mental Capacity, or ability to make a certain decision, may be impacted by (not exhaustively):

• Psychiatric illness
• Stroke or brain injury
• Dementia
• Learning disability
• Confusion, drowsiness, or unconsciousness due to treatment of an illness
• Substance misuse

Capacity is both decision and time specific: does the individual have capacity to make a specific decision at that specific time. Can they understand and retain information long enough to make a particular decision. It is important to understand that capacity can fluctuate, and that people can have capacity to make one decision but may not have capacity to make another. For example, someone may be able to manage a daily budget but may not be able to buy or sell a house.

The Mental Capacity Act sets out two main elements to determine capacity:

• “Diagnostic Test”: The inability to make a decision must be caused by an impairment in the functioning of the mind or brain.
• “Functional Test”: Looks at the decision-making process itself. Can the individual:
  • Comprehend the information relevant to the decision
  • Retain the information long enough to make a decision
  • Use and weigh the information to arrive at a choice
  • Communicate that decision

A person’s capacity may need to be assessed by an Independent Capacity Assessor, for more complex decisions. On a day-to-day basis, the appointed Deputy or Attorney will be making those decisions, ensuring that the client is as involved as possible and that there is regular communication.

There are five main key principles a Deputy or Attorney must follow when making decisions:

1. A presumption of capacity: Always assume a person has capacity unless proved otherwise.
2. Support to make decisions: Take all practicable steps to enable people to make their own decisions.
3. Unwise decisions: Do not assume incapacity simply because someone makes an unwise decision.
4. Best interests: Always act or make a decision in the person’s best interests.
5. Least restrictive option: Any intervention must be with the least restriction possible.

Similarly to a Deputyship, you may be appointed as an Attorney under a Lasting Power of Attorney for Property and Finance or Health and Welfare.

As an Attorney, the same responsibilities arise but in addition you may need to consider any instructions or preferences the donor has included in the LPA

You may be appointed as an Attorney:

• “Jointly” Where all Attorneys (if there is more than one) must agree when making a decision

Or

• “Joint and severally”: Where you may make decisions alone or together.

Or

• “Jointly for some decisions, jointly and severally for other decisions”: where you need to follow the instructions of the Donor which decisions you must make jointly with your co-Attorneys and which you can make on your own.

A Lasting Power of Attorney must be registered with the Office of the Public Guardian for it to be a valid document.