The Court of Protection makes decisions on behalf of people who are incapable of making those decisions personally.
The Court can make decisions in relation to a person’s welfare and/or their property and financial affairs.
The Court has the powers to:
- Decide whether an individual can make a particular decision or, indeed, any decisions for themselves.
- Appoint someone to make decisions on behalf of an individual who cannot make decisions for themselves.
- Consider applications to make statutory wills or gifts on behalf of an individual who does not have the capacity to make a will for themselves or give gifts to other people.
Sometimes the Court must make its decisions urgently. Usually this happens when the decision relates to a person’s medical treatment.
What is a Deputy?
When someone lacks mental capacity and needs longer-term assistance with regards to their affairs, the Court of Protection may appoint a “deputy” to manage that person’s affairs for them. This is not normally necessary if the person has made a power of attorney since the person named in that document can manage their affairs for them
There can be two different kinds of deputies – one for property and financial affairs and one for health and welfare. It is not always necessary to have both.
A deputy can be either someone close to the individual, such as a family or friend, or a professional person, such as a solicitor.
The application process to appoint a deputy is not straightforward and requires a considerable amount of information. In addition to this, a capacity assessment needs to be carried out to confirm that the person who is the subject of the application is indeed incapable of making decisions for themselves. Capacity is a very complex matter and, therefore, it is paramount to the success of the application that the capacity assessment is detailed, thorough and addresses the correct legal requirements.
Once appointed, the deputy can make decisions on behalf of the person who lacks capacity subject to the boundaries set by the Court. All decisions must be made in the best interests of the person who lacks capacity.
To ensure that deputies are acting both in the best interests of the person who lacks capacity and within the boundaries set by the Court, they are supervised by the Office of the Public Guardian (“OPG”). The deputy must send an annual report to the OPG explaining the decisions they have made.
If you are considering making an application to be appointed as a deputy for a relative or loved one, our Court of Protection Team can guide you through the process and explain in clear and simple terms what is involved and how long it will take. Acting as a deputy is a demanding role and the application to be appointed is only the first step. Our team will support you beyond your appointment to help you to feel confident in your role as deputy and to enable you to carry out your duties effectively.
If the most appropriate person to be appointed as a deputy is a professional, then members of our Court of Protection Team are often instructed to act as a professional deputy and have a wealth of experience in managing funds on behalf of individuals.
If you would like further information or advice regarding the Court of Protection or assistance with an application, please do not hesitate to contact Melissa Gill on 0191 226 7922. Alternatively, you can contact any other member of our Court of Protection team on 0191 226 7878.
