A Guide to Court of Protection Deputyship

When someone loses the mental capacity to make decisions for themselves, it may become necessary for another person to step in and manage their affairs.

This is where the Court of Protection and the appointment of a deputy can play an important role.

In this guide, the specialist team at Wilson Browne explains what the Court of Protection is, the role and responsibilities of a deputy, and the process involved in making an application.

What is the Court of Protection?

The Court of Protection is a specialist court responsible for making decisions on behalf of individuals who lack the mental capacity to make certain decisions themselves.

The Court can make decisions relating to:

• Property and financial affairs
• Health and welfare matters
• Ongoing care arrangements
• The management of assets and property

The Court works within the framework of the Mental Capacity Act 2005 and always aims to act in the best interests of the individual concerned.

Why can’t a next of kin automatically make decisions?

Although the phrase “next of kin” is commonly used, it has no automatic legal authority when it comes to managing another person’s finances or making formal decisions on their behalf.

Unless a valid Lasting Power of Attorney or Enduring Power of Attorney is already in place, authority will usually need to be obtained through the Court of Protection.

What is a Court of Protection Deputy?

A deputy is a person appointed by the Court of Protection to make decisions on behalf of someone who lacks mental capacity.

The deputy’s authority is set out in a Court Order and can relate to:

• Property and financial affairs
• Health and welfare matters

Most deputyship applications relate to financial matters.

Who can act as a Deputy?

A deputy must be at least 18 years old and can be:

• A family member
• A friend
• A professional such as a solicitor

In more complex cases — particularly those involving substantial assets, family disputes, or ongoing management requirements — the Court may prefer to appoint a professional deputy.

If there is nobody suitable or willing to act, a professional deputy, such as a partner of Wilson Browne or Wilson Browne Trust Corporation Ltd, may be able to assist.

Types of Deputyship

How is mental capacity assessed?

The law assumes every person has capacity unless it is shown otherwise.

As part of a deputyship application, a qualified professional must complete a formal capacity assessment confirming that the individual lacks capacity to make certain decisions themselves.

This assessment forms an important part of the Court application.

How does the Court decide whether to appoint a Deputy?

The Court will consider:

• Whether the individual lacks capacity
• Whether a deputy is necessary
• What powers the deputy should have

If satisfied, the Court will issue a deputyship order setting out the deputy’s authority and responsibilities.

What powers does a Deputy have?

A deputy can only act within the powers granted by the Court Order.

Depending on the order, powers may include:

• Managing bank accounts and savings
• Paying household bills and debts
• Dealing with pensions and benefits
• Selling or managing property
• Making investment decisions
• Making limited gifts on special occasions

Deputies must always act in the individual’s best interests.

Are Deputies supervised?

Yes. Deputies are supervised by the Office of the Public Guardian (OPG).

Deputies are usually required to:

• Keep accurate financial records
• Maintain accounts
• Submit annual reports to the OPG
• Explain major financial decisions

Professional support can often be obtained to help prepare annual reports and accounts.

What is a security bond?

A security bond is a type of insurance required by the Court for most property and financial affairs deputies.

The bond protects the person lacking capacity in the unlikely event that funds are mismanaged or misappropriated.

The level of security required is decided by the Court and premiums are usually paid from the protected person’s funds.

How long does deputyship last?

Deputyship will usually continue until:

• The person regains capacity
• The deputy resigns or is removed
• The person passes away

If circumstances change, further applications to the Court may be necessary.

Can a Deputy sell property?

Sometimes, but only if the Court Order allows it.

In some cases, a separate application to the Court of Protection may be required before a property can be sold.

The Court will usually want evidence that:

• The sale is in the person’s best interests
• They are unlikely to return to live at the property
• Any necessary care or deprivation of liberty arrangements are in place

Additional requirements may apply if the property is jointly owned.

Can the Court make a Will on someone’s behalf?

Yes. In certain circumstances, the Court of Protection can authorise what is known as a statutory Will.

The Court may also authorise larger gifts or inheritance planning arrangements where appropriate.

These require separate applications to the Court.

Frequently Asked Questions (FAQs)