The Mental Capacity Act 2005 allows the Court of Protection to make certain decisions about a person’s financial matters or their health and welfare, where that person lacks the mental capacity to make such decisions themselves. Care and capacity expert explains the role of the Court of Protection, its powers and answers some frequently asked questions.
The Court of Protection also has the power to appoint Deputies to make decisions on behalf of a person who lacks capacity. A person may lack the capacity to make their own decisions for reasons including a physical or mental illness, a learning disability, a stroke or a brain injury following an accident.
Generally, the Court has a wide range of powers which allows them to make decisions about:
At Lodders, we have extensive experience in advising clients in respect of matters concerning mental capacity, making applications to the Court of Protection on behalf of older and vulnerable individuals or their families and objecting to applications made where these are not deemed to be in their best interests. We are able to advise on the options available and what applications are appropriate in the circumstances.
The Court of Protection is a specialist court which deals with all issues relating to people who lack the mental capacity to make specific decisions.
The Court of Protection is part of the Family Division of the High Court.
The Court of Protection can rule on a wide range of issues which include:
Permission is required to make an application to the Court of Protection in select cases. Please contact us to discuss whether permission may be required before an application to the Court is considered.
Once it has been established that a person lacks mental capacity in relation to matters concerning their property and financial affairs and/or health and welfare, the Court of Protection may appoint a Deputy to make decisions on their behalf.
A deputyship application can be made in respect of property and financial affairs but also in respect of some aspects of health and welfare.
Where possible, the Court would prefer to appoint a family member or a close friend to act for the person who lacks capacity, provided it is in their best interests to do so. Alternatively, a professional adviser, such as a solicitor or accountant may be appointed. If none of the above are able then a member of the local authority’s social services department or a panel deputy can be appointed by the Court.
The Court will allow the appointment of Deputies to act jointly or, jointly and severally, however, they do not encourage the appointments of more than three individuals. This can lead to incurred costs, delay and a potential increase to the security bond (explained further below).
Once the application has been signed by all of the proposed deputies it is the sent to the Court of Protection. The Court will the issue the proceedings, however, there are other procedures that need to be carried out by the proposed Deputy/Deputies.
The Court aim to issue an Order within 21 weeks of the application being stamped. It can take 5-6 weeks to get to this point, depending upon how long the initial steps take.
The legal fees for obtaining a standard Deputyship may be fixed by the Court, agreed by the proposed deputy or may be assessed by the Senior Courts Costs Office, this all depends upon how involved the application is.
There is also a Court fee payable of £400, however, depending upon the circumstances of the person lacking capacity, an exemption or remission may apply to this Court fee.
The Court generally requires a Deputy or Deputies to provide some form of security such as a guarantee bond to cover any financial loss to the person lacking capacity as a result of the actions Deputy or Deputies.
Provided that the Deputy or Deputies act within the terms of the Court’s Order and comply with the principles of the Mental Capacity Act, it is unlikely that they will incur liability. If a deputy acts outside of their powers then the Court may enforce the security bond or authorise someone to bring an action against them.
The Office of the Public Guardian deals with the registration of Powers of Attorney, they also supervise Deputies to ensure that they are acting in the best interests of the person lacking capacity. The level of supervision required by the Office of the Public Guardian will be determined by the complexity of the person’s financial affairs, the type of decisions that the Deputy needs to make and the relationship between and the Deputy.
A Deputy is required to submit an annual report to the Office of the Public Guardian and a Court visitor may become involved to see how the Deputyship is being managed.
A Deputy is entitled to employ professionals such as a solicitor, an accountant and a regulated financial advisor to assist in the management of the person who has lost capacity. Any such professional costs are payable from the person’s own finances.
For more help and guidance on anything we have discussed in this blog, please contact us. You can also find more information by reading our care and capacity law page.Contact us
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