What is the Court of Protection?
The Court of Protection deals with decisions or actions taken under the Mental Capacity Act; it has the authority to make judgements on behalf of a person who lacks the mental capacity, as well as the power to appoint a deputy to make decisions on behalf of that person.
Court of Protection Powers
A Court of Protection order details the decisions that can be made on behalf of someone who lacks the mental capacity, and has the power to:
- Decide if someone has the mental capacity to make a specific decision for themselves.
- Handle emergency applications where a decision has to be made on behalf of someone else imminently.
- Make decisions regarding a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA) and consider any objections to their registration.
- Give an individual permission to make a one-off decision on behalf of someone who lacks the mental capacity.
- Consider applications to make statutory wills or gifts.
- Decide when someone can be deprived of their liberty under the Mental Capacity Act 2005.
- Appoint deputies to permanently make ongoing decisions for someone who lacks the mental capacity.
Court of Protection Deputies
There are two types of Court of Protection deputy which are quite self-explanatory: a property and financial affairs deputy and a personal welfare deputy.
As a deputy, you will be responsible for helping an individual make decisions, sometimes on their behalf. As mentioned above, a Court of Protection order will detail what you can and cannot do, and the Mental Capacity Act 2005 Code of Practice has general rules and examples.
It is important to consider their mental capacity every time you make a decision; you should not assume that it will be the same every time and for everything. Some guidelines and responsibilities include:
- Always make sure the decision is in the person’s best interests; try to help them understand the decision and consider what they’ve done in the past.
- Apply a high standard of care such as getting advice from relatives and professionals.
- Don’t restrain them, unless it’s to prevent them from being harmed, or stop life-sustaining medical treatment.
- Don’t take advantage of their situation, abuse them or selfishly profit from a decision you have to make; don’t hold any of their possessions or finances in your own name.
- Don’t make a Will for the person, or alter their Will, or make gifts unless the court order states that you can.
- Always add the decisions to your annual report.
If you mistreat or neglect the individual on purpose, you could face prison for up to five years and / or a fine.
Who Can Apply to Be a Deputy?
If you are over 18 years old, you can apply to be a deputy; close relatives or friends are usually appointed. Property and financial deputies should have the skills to make financial decisions.
Two or more deputies can be appointed for the same person; the two different ways they can make decisions are ‘joint deputyship’ or ‘jointly and severally’. Essentially, it’s either where all the deputies agree on the decision or where deputies can make decisions on their own or with other deputies.
Accountants, solicitors or local authority representatives can also be appointed as a deputy. If no one is available to be a required deputy, the Court of Protection can choose a specialist deputy from a list of approved law firms and charities.
Court of Protection at Executor Solutions
At Executor Solutions, we assist Property and Financial Deputies in managing and selling properties. If you would like some more information about what our services entail, contact us today and one of our friendly team members would be happy to help.