Court of Protection and Deputyship Applications

If someone cannot make decisions themselves because they lack capacity, for example dementia, autism, or a brain injury, and there is no Lasting Power of Attorney (LPA) in place, the Court of Protection can  appoints a deputy to assist with the management of finances or making a best interest decision with regards to health and welfare.

A person is identified as “lacking capacity” when, due to an impairment of the mind or brain, they are unable to understand, retain, weigh up, or communicate information needed to make a specific decision.

Under the Mental Capacity Act 2005 (MCA), capacity is assessed in relation to a particular decision at a particular time, not as a blanket judgment. The law sets out a two stage test:

Stage 1 – Impairment or disturbance

There must be an impairment or disturbance in the functioning of the mind or brain. This can be permanent (e.g., dementia, severe learning disability, brain injury) or temporary (e.g., delirium, unconsciousness, effects of medication).

Stage 2 – Inability to make the decision

Because of that impairment, the person is unable to do one or more of the following:

• Understand the information relevant to the decision
• Retain that information long enough to make the decision
• Use or weigh up the information as part of the decision-making process
• Communicate their decision (by speech, sign language, or other means).

Key principles of the Mental Capacity Act 2005

• Presumption of capacity: Everyone is assumed to have capacity unless proven otherwise.
• Decision‑specific: A person may lack capacity for complex financial decisions but still have capacity for everyday choices.
• Support first: All practicable steps must be taken to help the person make the decision before concluding they lack capacity.
• No assumptions: Capacity cannot be judged solely by age, appearance, diagnosis, or behaviour.

Deputies are the people appointed by the Court of Protection to make the decisions that need to be made on a vulnerable person’s behalf in their best interests when they lack capacity. This can be for finances or health and welfare.

A Court of Protection order is a legal document that outlines the decision made by the Court of Protection and its directions. It will include details of who has been appointed as deputy to make decisions and also may include any restrictions.

If someone has lost mental capacity and they are not able to give instructions for lasting powers of attorney, then the only option is to make an application to the Court of Protection for the appointment of a deputy.

It is normally a relative or a close friend who would make the application to the Court of Protection for their appointment as deputy. If there are noone willing to act, then a lawyer or other professional could also apply to deal with all aspects of their financial affairs.

A Lasting Power of Attorney (LPA) is not the same as a deputyship. The key difference is that an LPA is set up by the individual before they lose capacity, while a deputy is appointed by the Court of Protection after capacity is lost.

An LPA allows an individual to choose their attorneys to make decisions about their property and finances, or health and welfare.

A deputyship is granted when someone has already lost capacity and did not make an LPA. The Court of Protection appoints a deputy to act on the persons behalf, both in terms of finances and health and welfare.

Deputies can be family members, friends, or professionals, but the choice lies with the Court, not the individual. Deputyship orders are often more restrictive than LPA’s, which require ongoing supervision by the Office of the Public Guardian, and can be more costly and time consuming to obtain.

The Court of Protection process typically takes 3–12 months, depending on how quickly information can be gathered and the court’s current workload. Delays can arise from obtaining capacity assessments, responding to court queries, or dealing with objections. Where objections are raised or a hearing is required, the process is likely to take longer.

Emergency applications can also be made for urgent situations.

Yes, an emergency application can be made to the court if there is a urgent situation and a decision needs to be made as soon as possible. The court has a designated 24-hour emergency helpline specifically for welfare cases. If an urgent decision needed to be made on a financial matter, then a standalone application could be made for an interim order to enable the proposed deputy to make the decision in question before the issue of the deputyship order.

Yes, an emergency application can be made to the court if there is a urgent situation and a decision needs to be made as soon as possible. The court has a designated 24-hour emergency helpline specifically for welfare cases. If an urgent decision needed to be made on a financial matter, then a standalone application could be made for an interim order to enable the proposed deputy to make the decision in question before the issue of the deputyship order.

You can make a formal free request to the OPG to search their registers. This is usually done by completing a OPG100 form and the free search service will confirm whether someone has a registered Lasting Power of Attorney (LPA), Enduring Power of Attorney (EPA), or court-appointed deputy. Whilst the OPG will confirm whether a deputyship exists, they may not disclose full details without proper authority.

The Court of Protection can make financial and welfare decisions on behalf of someone who lacks capacity under the Mental Capacity Act 2005. This includes:

• deciding on a person’s mental capacity regarding particular decision
• appointing deputies to make ongoing decisions for those who lack mental capacity
• making one-off decisions for a person who lacks mental capacity in relation to financial or personal welfare
• making decisions regarding the lawfulness of a deprivation of liberty under the Mental Capacity Act 2005.

The Court of Protection will always act in the best interests of the person who lacks mental capacity.

The Court of Protection cannot make a decision on behalf of someone who has the capacity to make that decision themselves. If a person has capacity, any application would fall outside the Court of Protection and may instead be dealt with under the court’s inherent jurisdiction.

If there is no one in the person’s life to take on the role, the Court of Protection may appoint a professional deputy (such as a solicitor experienced in Court of Protection work), or a local authority who can step in to ensure the person’s welfare needs are met.

The court has discretion to decide who is most appropriate, balancing independence, expertise, and safeguarding.

The Office of the Public Guardian (OPG) publishes the official list of approved “panel deputies” on gov.uk. The list is organised by region (e.g., Northeast, Northwest, London, Southeast, Wales) and includes contact details for each panel deputy.

A property and financial affairs order gives the deputy the legal authority to manage the individual’s entire financial affairs and property, such as opening, closing and operating any bank, building society or other account.

A personal welfare order gives the deputy the legal authority to make decisions about the individual’s health needs and general welfare, such as arranging medical treatment.

An application can also be made for a simple order to give a person(s) permission to make one-off decisions on behalf of the individual. For example, a gifting application or an order for sale, or to allow life saving treatment.

The court order will outline what the deputy can and can’t do.

A property and financial affairs order usually gives the deputy the general legal authority to manage the individual’s entire financial affairs, which can include:

• opening, closing and operating any bank, building society or other account in the persons name
• dealing with any investments the person lacking capacity may have and liaising with an IFA
• claiming and receiving state benefits
• receiving any income, including occupational and private pensions
• dealing with their tax affairs and liaising with HMRC
• paying bills and invoices and clearing all outstanding debts.

There are a few exclusions. For example, a deputy is not allowed to sell a property if it is held jointly with someone else as this requires a separate trustee application. A deputy also can’t sell or purchase any property on behalf of the individual without the court’s prior authority.

The court order will explain what the deputy can and can’t do. A personal welfare order generally gives the deputy the legal authority to make decisions about the individual’s health needs and general welfare, such as:

• making decisions as to where the individual should live
• making decisions on the individual’s day to day care, including diet and dress if appropriate
• arranging for the individual to be given medical, dental or optical treatment
• organising assessments needed for and provision of community care services
• agreeing whether the individual should take part in social activities, leisure activities, education or training.

Health and welfare deputies are “less likely” because the Court of Protection usually prefers decisions to be made under section 4 of the Mental Capacity Act 2005 best interest’s framework, rather than giving one-person ongoing authority.

The Court of Protection is cautious about appointing health and welfare deputies because it does not want to restrict the flexibility of the best interests process.

Deputies are only appointed when there is a clear need for ongoing authority, such as frequent disputes between family and professionals, complex or repeated decisions about care or medical treatment, or situations whereby an individual’s welfare needs are not being adequately safeguarded.

To obtain a health and welfare deputyship, the Court of Protection requires clear evidence that the person lacks capacity and that ongoing welfare decisions cannot be managed under the standard “best interests” framework (section 4 Mental Capacity Act 2005).

The application must include a medical assessment of capacity known as COP 3 (usually completed by a doctor or other medically qualified professional). This confirms that the person cannot make decisions about their health and welfare.

As health and welfare deputyships are rare, the court requires proof that ordinary safeguards are not enough. Evidence can include:

• frequent disputes between family and professionals about care or treatment
• complex or ongoing decisions that require urgent attention
• situations where the person’s welfare is at risk without a deputy.

The court wants to see why a deputyship is necessary, rather than relying on professionals to act under the Mental Capacity Act’s best interests test.

When making decisions on behalf of someone else, the deputy is expected to consider the five key principles of the Mental Capacity Act 2005:

1. Every individual has the right to make their own decisions and must be assumed to have capacity unless it is proven otherwise.
2. Individuals must be given all appropriate help before they can be considered unable to make their own decisions.
3. Individuals have the right to make unwise decisions, including decisions that others may consider eccentric.
4. Anything done for or on behalf of an individual who lacks capacity must be in their “best interests”.
5. Anything done for or on behalf of an individual who lacks capacity should be the least restrictive and not infringe on their basic rights and freedoms.

The Court of Protection also requires the deputy to be familiar with the Mental Capacity Act Code of Practice, this provides information and guidance for people affected by the Mental Capacity Act and explains how it works in practice.

The deputy should, where possible, involve the person with any decision making and always ensure they always act in the person’s best interests.

Yes, record keeping is essential when dealing with someone’s property and financial affairs. The deputy would be expected to complete an annual account which is submitted to the Office of the Public Guardian and this will show what the deputy has received on behalf of the person and what has been 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 Office of the Public Guardian may ask to see proof, such as bank or building society statements.

No. Only a professional deputy, such as a solicitor or accountant, can be paid for dealing with financial affairs under a deputyship order. A lay deputy (a non-professional) person can claim reasonable, out-of-pocket expenses.

If the appointed deputy can no longer act for the person who has lost capacity another application would need to be made to the Court of Protection for the discharge of the deputy and a new deputy to be appointed.

If this happens then an application with medical evidence confirming the regaining of capacity (COP 3) would need to be made to the Court of Protection to discharge the current deputy.

A deputyship order can be amended or vaired, however it would involve an application to the Court of Protection.

If the individual doesn’t have the capacity to make a Will, the deputy can 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 if they only have a short time to live.

The deputyship order does not give a deputy general authority to change the individual’s Will. However, should there be a legitimate need for a will, then an application for a Statutory Will can be made.

Deputyship orders do not have an expiry date. They would only end if

• the person has died or regained capacity
• the sole deputy has died or has lost mental capacity
• the sole deputy wishes to retire and there is no one to appoint.
• there is evidence of financial abuse, and the order is revoked by the Court of Protection.

Guardianship and deputyship are not the same. They both involve taking responsibility for another person, but they apply in different legal contexts.

Deputyships arise under the Mental Capacity Act 2005 and applies when an adult over 16 years old lacks mental capacity to make certain decisions for themselves (for example, due to dementia, brain injury, or severe learning disabilities). The Court of Protection appoints a deputy to make decisions about someone’s property and finances, e.g. managing bank accounts, paying bills and handling benefits, or their health and welfare, such as managing medical treatment and living arrangements.

A guardianship applies to children under 18 who need someone to take legal responsibility for them. A guardian may be appointed if parents have died, are unable to care for the child, or in certain family law situations. Guardianship is more about parental responsibility   rather than financial management or medical treatment for an adult.