News & Insights

The Court of Protection (CoP) fulfils a vital role in assisting individuals who no longer have the ability to manage their own affairs. This includes in respect of both health and welfare matters and finances.

The Court also authorises others to act as deputies for those who need assistance. If you have a relative who is unable to  make their own decisions any  longer and they do not have a Lasting Power of Attorney or Enduring Power of Attorney in place, then an application can be made to the CoP for a deputyship order.

What the Court of Protection does

The CoP is responsible for the following:

• Deciding whether an individual has the mental capacity to make decisions themselves, by looking at the evidence provided in the case.
• Appointing a deputy to act for someone who cannot make their own decisions.
• Providing authority for one-off decisions, such as permission to sell an individual’s home.
• Dealing with emergency applications for urgent decisions.
• Dealing with issues relating to Lasting Powers of Attorney and Enduring Powers of Attorney, to include considering objections to their registration.
• Making decisions relating to statutory Wills, ie. making a Will on behalf of someone who cannot manage their own affairs.
• Authorising gifts to be made on behalf of individuals who cannot manage their own affairs.
• Granting permission for someone to be deprived of their liberty under the Mental Capacity Act 2005.

Applying to the Court of Protection to be  appointed as a deputy

If you have a relative who is no longer able to manage their own affairs and they have not appointed an attorney to represent them, then you may need to apply to the Court of Protection for a deputyship order. This will give you certain authority to deal with matters for them. The order will specify exactly what you will be allowed to do.

To apply to become a deputy, you will need to fill in an application form. You can ask to be a deputy for someone’s property and financial affairs or for decisions relating to their personal welfare or both.

There is a strict process which you must go through before you apply, including advising the individual that you are applying to be their deputy and telling three other people with a connection to the individual.

You or your representative must explain to the individual that their ability to manage their own affairs is in doubt and the implications of having a deputy. You should also let them know where they can obtain advice.

There is an acknowledgement form for them to complete if they are able.

You will need to provide the CoP with:

• A supporting information form,  providing in-depth information about the individual’s financial position.
• An assessment of capacity form, which must be completed by an individual with the professional expertise to assess the individual’s mental abilities.
• A deputy’s declaration providing your details, including financial information.
• The acknowledgement form signed by the individual, if they have been able to do this; alternatively, a witness statement explaining why they cannot.

If the court  approves your appointment as a deputy, it can place  limitations in the order, such as the length of the appointment. It will also decide the level of supervision you should be subject to.

If you will be acting as a property and financial affairs deputy, you will usually be required to pay a security deposit before you take up the role.

Acting as a deputy

If you are appointed to act as someone’s deputy, you have a duty to comply with the Mental Capacity Act 2005, which says that you must:

• Assume the individual can make their own decisions unless it is proved otherwise.
• Help them to make their own decisions wherever possible.
• Remember that someone has the right to make an unwise decision if they wish.
• Act in their best interests at all times.
• Take the decision which least restricts their rights and freedoms.

You must keep a detailed record of the actions you take on behalf of the individual, including financial records. You should also retain a record of  who you discussed decisions with.

A deputyship report should be submitted each year to the Office of the Public Guardian, or more frequently if ordered.

Contact us

If you would like any further information on how to make an application to the Court of Protection please contact one of our Wills and Probate experts.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.