Court of Protection

If a person loses mental capacity and is unable to make decisions for themselves,  an application to the Court of Protection may be necessary to appoint someone to act on their behalf as a Deputy.

A Deputy is a trusted person, family member, friend or other loved one appointed by the Court of Protection to act on behalf of the person that has lost mental capacity.

An application to the Court of Protection to appoint a Deputy is usually done in the absence of an existing Lasting Power of Attorney for the person who is without capacity or if a specific order is required from the court.

What types of application can be made?

When applying to the court you can request to be appointed as deputy for the person’s property and financial affairs and/or their Health and Welfare. Unlike the appointment of an Attorney under a Lasting Power of Attorney however, the court will give specific authority as to what a Deputy can and cannot do rather than the general authority conferred by a donor in a Lasting Power of Attorney.

How long does a Court of Protection application take?

This will depend on the order being sought and the type of Deputyship order being requested from the Court.

What is a Deputy required to do?

A Deputy will be required to act on behalf of the person they are to act for in their best interests and in line with the Court of Protection Deputyship Order itself.

Any Order made by the Court of Protection is made in accordance with the Mental Capacity Act 2005 and the powers conferred onto it under this law. An appointed deputy must therefore adhere to the order and the Mental Capacity Act 2005 and in particular it’s principles set out therein.

A Deputy will be required to submit accounts year and is supervised by The Office of The Public Guardian.

What are the Mental Capacity Ace 2005 principles?

The Principles of the Mental Capacity Act 2005 are that:

• A person must be assumed to have capacity unless it is established that he lacks capacity.
• A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
• A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
• An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
• Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.