What is the Court of Protection?

A court that makes decisions about financial (and welfare) matters when a person is incapable of making decisions for themselves and there is no one else who can legally make decisions for them.

Why can’t my next of kin make decisions for me?

The phrase ‘next of kin’ is common but has no legal status in relation to financial decisions. The only person able to manage your finances if you lose the capacity to do so for yourself is a Court of Protection Deputy or an attorney acting under a registered Lasting or Enduring Power of Attorney.

Who can be a Deputy?

Anyone can act as a Deputy. It could be a family member or a friend. It can also be a professional person such as a lawyer. In complex cases particularly those involving large awards of damages, the Court may prefer to appoint a professional Deputy.

If there is no one able, suitable or wiling to act as Deputy, the Court of Protection will appoint a lawyer from its professional panel. QualitySolicitors can put you in touch with lawyers who are members of the Court of Protection specialist panel.

What is ‘incapacity’?

The first step is for the Court to be satisfied that the person lacks capacity to make certain decisions for themselves and that those decisions must now be made for them. A Capacity Report must be prepared.

The person making the application usually completes the first part of the Capacity Report. It sets out what decisions need to be taken, such as investment of money and sale of property etc.

The report is then given to an appropriately qualified person such as a doctor who will assess the person’s ability to make those decisions for themselves. The professional will then record their views in the second part of the report. If the professional agrees that the person is incapable of making the necessary decisions, the Court application can proceed.

What else will the Court need?

The person wanting to be Deputy must give the Court personal details about themselves and make some important commitments. This is done in a written document known as a Deputy Declaration.

The Court must also be given as much information as possible about the person who lacks capacity to make decisions. This includes basic information such as their name and current whereabouts, and details about their finances and care needs. The Court must also be given the names and address of people who should be told about the application. This will usually be close family or friends.

How long will it take?

Unless there are very urgent issues to address, it could take several months from the date on which the papers go to court before the order appointing a Deputy is made. If the matter is urgent from the outset, there is a special procedure that can be followed.

What will happen in the meantime?

If issues become urgent after the papers are sent to the Court, a separate application can be made just to deal with the urgent action needed.

How does the Judge decide whether a Deputy should be appointed?

Once the Court has issued the papers and the relevant people are notified of the application, all of the papers will be given to the Judge. If no one has objected to the appointment the Judge will consider all of the papers and if satisfied that a Deputy is needed, an order will be made. The contents of the order will vary depending on the decisions and actions needed.

So there is no need for anyone to attend court?

An attendance at court is not usually necessary unless there are complex issues to consider or an objection is made to the appointment.

Are Deputies supervised?

Yes. The Court of Protection sets the level of supervision, which may range from none to’ close supervision’. The Public Guardian then supervises the Deputy. The Public Guardian can call on the Deputy to account for their actions at any time. The Deputy must also file an annual account showing how funds are cared for, the decisions they have made and the extent to which they have involved the incapacitated person in those decisions.

Are Deputies insured?

All Deputies must have a ‘security’ in place. The Court sets the level of the security. The usual way of arranging this security is through an insurance policy. The policy is renewable annually and the premium is paid from the funds, which the Deputy manages.

Can the Court of Protection make a Will for someone or let gifts be made from their funds?

Yes. In certain circumstances the Court can make what is know as a statutory Will or authorise gifts over and above those that the Deputy can make.