Court of Protection and Deputyship Knowledge & Resources

The Court of Protection was created following the Mental Capacity Act 2005. The court has authority over the property and financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves. The Court of Protection appoint a deputy or deputies to manage the affairs of the person who has lost mental capacity.

It is normally a relative who would make the application to the Court of Protection for their appointment as deputy. If there are no relatives or the relatives are unwilling to act then a close friend, lawyer or other professional could also apply to deal with all aspects of their financial affairs.

There are two types of deputyship order the property and affairs deputyship order gives the deputy the legal authority to manage the individual’s entire financial affairs the personal welfare deputyship order gives the deputy the legal authority to make decisions about the individual’s health needs and general welfare. These orders are very difficult to obtain. A single order can be applied for to give a person(s) permission to make one-off decisions on behalf of the person who lacks mental capacity. These are often used for one-off welfare decisions.

Yes an emergency application can be made to the Court of Protection if there is a life or death situation and a decision needs to be made as soon as possible, this would only be used for welfare cases. The court has a designated emergency helpline that is available 24 hours a day. If an urgent decision needs to be made on a financial matter, then an application could be made for an interim order to enable the proposed deputy to be able to make the decision in question before the issue of the deputyship order.

The court order itself will advise the deputy as to what they can and can’t do, for example if they seek permission to sell the person’s property. The deputy will be able to take full control of the persons affairs and when making decisions for that person, be expected to take into account the five key points of the Mental Capacity Act. The deputy should, where possible, involve the person with any decision making and always ensure they act in the person’s best interests at all times.

Yes, record keeping is essential when dealing with a persons property and financial affairs. The deputy would be expected to complete an annual account which is submitted to the Court of Protection and this account will show what monies you have received on behalf of the person and what monies you have paid out on their behalf. This could also include showing proceeds of sale of a property or closure of bank accounts, and how the funds have been invested. It is essential that all accounts are kept in good order as the court does at intervals ask to see proof, such as bank or building society statements.

Deputyship orders do not have an expiry date on them. They would only end if the person to who it relates to has died or regained capacity the deputy has died or has lost mental capacity the deputy wishes to retire and appoint someone else there is evidence of financial abuse and the order is revoked by the Court of Protection.

If there are concerns a deputy is abusing their power or they are making both financial and welfare decisions that are not in the best interests of the person whose affairs they are responsible for then this needs to be reported to the Office of the Public Guardian.

If they don’t have the capacity to make a Will the deputy will need to apply to the Court of Protection to make a statutory Will. A statutory Will ensures that the person’s wishes can be met, such as gifts left to loved ones or favoured charities. An emergency application to the Court of Protection for a statutory Will can be made they only have a short time to live.

A Deputy is the person or persons appointed by the Court of Protection to deal with the affairs of the person who has lost capacity and can no longer manage their own affairs You can streamline their accounts, pay off all their debts, apply for benefits that they may be entitled to. You can also sell their home if they are in residential or nursing care and their care fees need to be paid from the sale proceeds.

You can only make welfare decisions if you have applied for and have been awarded the Personal Welfare Order. Then and only then can you make decisions for your loved one and the decisions that you can make will be stipulated in the Order by the court.

As a Property and Affairs Deputy you will be expected to complete an Annual Account on a yearly basis and this will document what decisions you have made on behalf of your loved one during the past year. It is very important that you document all that you do for your loved one, keep good clear records of everything that you have paid out and keep all receipts and statements.

If the appointed Deputy can no longer act for the person who has lost capacity for whatever reason, another application would need to be made to the court for a new Deputy to be appointed.

If this happens then an application would need to be made to the court for dispensing of the current Deputyship Order; medical evidence would also need to be submitted confirming the regaining of capacity.

Only a Professional Deputy can be paid for dealing with financial affairs under a Deputyship Order. A lay Deputy (a non-professional) person can claim reasonable expenses.

The order ends on either the death of the person who has lost capacity or if they regain capacity and are now able to deal with their own affairs. In the case of the latter a further application will need to be made.