What is the Court of Protection?

This is a specialised Court that makes decisions about Property and Financial Affairs and Personal Welfare matters for people who cannot make decisions, usually because they lack mental capacity. 

If someone (known as “the Person”) does not have sufficient mental capacity, the Court can appoint someone else (known as a “Deputy”) to make certain decisions for them. 

Lack of Mental Capacity

No one can assume a person lacks mental capacity because of age, appearance or actions. A lack of capacity will usually come from an impairment of or disturbance in the functioning of the mind or brain, for example a brain injury because of an accident or clinical negligence, dementia, a stroke, mental illness or a learning disability.

Once appointed, a Deputy will be authorised by the Court of Protection to make decisions on behalf of the Person who has lost mental capacity (this can be temporarily or permanently). However, whilst a Deputy has the authority to make decisions, they must check whether the Person has mental capacity to make a decision at the time it needs to be made. Capacity can be assessed by a GP, Social Services or other professional. 

A Person can make the decision if they can:

• Understand the information needed, e.g. what the consequences will be
• Remember the information for long enough to make the decision
• Consider the options and make a choice
• Communicate their decision in any way, e.g. by blinking or squeezing a hand

Types of Deputyship

There are two types of Deputyship: Property and Financial Affairs and Personal Welfare. 

The most common form of Deputyship is Property and Financial Affairs. Once appointed, a Deputy can assist in paying of bills and organising an individual’s finances and expenditure. The Deputy must keep detailed records of bank statements, contracts for services, receipts, letters and emails about their activities. 

A Personal Welfare Deputy can make medical decisions and decide how the Person is looked after. However, such Deputyships are rare and applications are only granted in extreme circumstances, such as where there is a dispute over care or medical treatment where no resolution can be reached. 

Gifts made by a Deputy

The Deputyship Order can advise whether gifts can be bought or made on behalf of the Person. It will also say if there is an annual limit on gifting. Generally, any gifts must be reasonable and cannot reduce the level of care the Person can afford. If a large one-off gift is required i.e. for inheritance tax planning, then an application must be made to the Court of Protection.

Expenses incurred as a Deputy

Related expenses can be claimed for acting as a Deputy, e.g. for phone calls, postage and travel costs. However, claims cannot be made for social visits or for the time spent performing the duties (unless the Deputy is a professional i.e. a Solicitor). 

Expenses are included in an annual report and if they are found to be unreasonable the Deputy will have to pay them back. If the Court feels a Deputy is being dishonest, they may cancel the Deputyship.  

Who can be a Deputy?

• Deputies can be friends, relatives or even professionals.
• Deputies must be over 18 and, with regards to financial decisions, must have the required skills to make such decisions for someone else or to seek the appropriate professional advice.
• There can be up to four Deputies appointed and it is usually recommended that there be more than one. 
• If the Person’s assets are complex, it may be appropriate to appoint a Professional Deputy to act.

A proposed Deputy must complete the necessary forms and pay for the application fee (which can be reimbursed from the Person’s funds once the order has been granted in Property and Financial Affairs cases). Once appointed, the Deputy will receive a Court Order advising what they can and cannot do. 

Responsibility of a Deputy

The level of mental capacity must be assessed before every decision is made on behalf of the Person. Assumptions cannot be made as the Person may have capacity at various times and for different things. 

When making a decision, the Deputy must:

• Make sure it is in the Person’s best interests
• Consider what they have done in the past
• Apply a high standard of care – this might mean involving other people e.g. getting advice from relatives and professionals like doctors
• Do everything they can to help the Person understand the decision, e.g. explain what is going to happen with the help of pictures or sign language
• Add the decisions to the annual report

When making a decision, the Deputy must not:

• Restrain the Person, unless it is to stop them coming to harm
• Stop life-sustaining medical treatment
• Take advantage of the Person’s situation, e.g. abuse them or profit from a decision
• Make or change a will for the Person
• Make gifts unless the court order authorises it
• Hold any of the Person’s money or property in their own name 

Requirements of the Annual Report:

Once appointed an annual report must be sent to the Court about the decisions made in that year. The report must include:

• The reasons for any decisions and why they were in the Person’s best interests 
• Who the Deputy spoke to and what they said was in the Person’s best interests
• Details of the Person’s finances, such as bank statements 

Fees

The Court charges for each application and there are yearly supervision fees depending on the level of supervision required. If you are a Property and Financial Affairs Deputy, you will also be required to take out a policy of insurance (security bond) which will protect the Person’s assets. 

How Williamsons can help

We can assist you with an application to be appointed as a Deputy or, if you feel a Person requires more specialist assistance, we can also be appointed to act as professional Deputies.