If you are concerned about the mental capacity of a friend or loved one and are considering an application to the Court of Protection, our guide will help you get started.
What is the Court of Protection?
If an individual lacks the mental capacity to manage their own affairs, the Court of Protection can make decisions on their behalf. The Court is able to make decisions regarding money, property, health or welfare. If there is a need to make such decisions on a long-term basis, this power can be given to someone else, such as a relative, so that they can manage their loved one’s affairs. This person is known as a ‘deputy’.
The Court of Protection was established by the Mental Capacity Act 2005. In summary, it is responsible for:
- deciding whether someone has the mental capacity to make a particular decision for themselves
- appointing deputies to make ongoing decisions for people who lack mental capacity
- giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity
- handling urgent or emergency applications where a decision must be made on behalf of someone else quickly
- making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration
- considering applications to make statutory wills or gifts
- making decisions about when someone can be deprived of their liberty under the Mental Capacity Act.
How do I apply to the Court of Protection?
If you feel someone has lost the capacity to make their own decisions, you may apply to the Court of Protection by providing various forms, one of which contains a doctor’s certificate which confirms this lack of capacity. The forms required depend on the powers requested – for example, do you want the Court to make decisions relating to finances or to hospital treatment, etc.?
Is this different to a lasting power of attorney?
A lasting power of attorney is a legal document completed by an individual when they have capacity which sets out how they want others (their appointed attorneys) to manage their affairs if they should lose mental capacity to do so themselves. This is different to the Court of Protection as the individual is able to choose how they want decisions made, and by whom, in advance.
Who can be a deputy?
A friend or relative can be appointed deputy by the Court of Protection. The responsibility of a deputy is to make decisions in the best interests of their loved one.
The Court may also appoint a solicitor to be a professional deputy. For example, where there are no suitable family or friends to take on this responsibility, where there are large amounts of money involved or where the situation is particularly complicated, the Court may feel that a solicitor is the most appropriate option.
What can a deputy do?
Becoming a deputy means taking on a substantial amount of responsibility. Decisions must be taken regarding the individual’s finances, property, health or welfare:
- that are in their best interests
- only if the individual cannot make the decisions themselves
- only if the Court has given permission for this type of decision
- with a high standard of care in mind.
The deputy will need to regularly report to the Court on the decisions they have made and why they have made them, and provide accounts of their use of the patient’s funds.
Deputies are not permitted to transfer assets from the vulnerable person to themselves, to make a will on their behalf or to give away their money or assets without the approval of the Court of Protection.
How do I make or change will for my loved one if they are no longer capable of doing so themselves?
If you are a deputy or attorney for a loved one who doesn’t have a will or who needs to amend an existing will, and who doesn’t have the mental capacity to execute it, you may be able to obtain one from the Court of Protection. This is called a statutory will. Statutory wills are usually granted where the person has not already made a will or where there has been a significant change in their circumstances, i.e. their estate has significantly reduced or increased in value or a named beneficiary has died.
What is a professional deputy?
As mentioned above, taking on the role of deputy for someone who cannot manage their affairs can be challenging and time consuming. As such, in some cases an experienced solicitor is appointed to act as a professional deputy. For example, professional deputies are often appointed where the vulnerable person’s lack of capacity is caused by a serious accident and there is a large compensation award to administer as a result.