The Court of Protection is a specialist court that makes decisions about the property; finances; and personal welfare of those who lack the mental capacity to take decisions themselves. The role of the Court of Protection is to make decisions for people about their money, property, health or welfare. You can find more information about the Court of Protection here: https://www.gov.uk/courts-tribunals/court-of-protection Why can’t my next of kin make decisions for me? This is a common question, however, the phrase ‘next of kin’ is often used 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-appointed deputy or attorney acting under a registered lasting or enduring power of attorney. Our specialist and highly experienced Court of Protection solicitors are here to help and support you at an often difficult and stressful time in your life. As Court of Protection solicitors, we support families dealing with such circumstances and are sensitive to the dynamics that this may create within the family. Where there is dispute within the family, we can also handle litigation in the Court of Protection. Whatever the situation, we will do our best to help you. What is a Court of Protection Deputy? A deputy is someone appointed by the Court of Protection to deal with the property and financial affairs of a person who lacks the mental capacity to do so themselves. If your loved one is in such circumstances, you will need to make a deputy application. A deputy application is made to the Court of Protection. The person(s) named as deputy/deputies is/are chosen by the Court of Protection and not by the donor and, accordingly, could be someone the donor would not ordinarily choose to make such decisions. Who can be a Deputy? A deputy must be at least 18 years old. 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 sums of money, the Court may prefer to appoint a professional deputy. If you don’t know anybody that is able, suitable, or willing to act as deputy, Ash Hill Solicitors could apply to the Court of Protection to be appointed. What’s the difference between a Property and Affairs Deputy and a Personal Welfare Deputy? A deputy for property and affairs can make decisions about financial matters, such as paying bills or buying services; whereas a personal welfare deputy can make decisions about health and welfare matters; such as deciding where someone lives and the care and treatment they receive. It is rare for the court to appoint personal welfare deputies and it will only do so in the most difficult cases. If there is a dispute about a health and welfare decision the court will usually make the decision itself rather than appoint a deputy to make the decision. What is ‘incapacity’? The law presumes that everyone has the capacity to make a decision unless it can be shown otherwise. An assessment of capacity (on form COP3) by a qualified practitioner must accompany the deputyship application, so the court can decide whether the person lacks capacity to make certain decisions for themselves. In the legal context mental capacity is the ability to make decisions. Examples of the situations in which it might be particularly important to establish a person's mental capacity include when in relation to making a will, undertaking lifetime giving or making a lasting power of attorney. Establishing mental capacity (or incapacity) might also be particularly important in relation to decisions about an individual's physical well-being, including about the medical treatment he/she is to receive. It might also be relevant in relation to more humdrum decisions about an individual's everyday activities and lifestyle. The test of mental capacity here is a legal test rather than a medical test or diagnosis. And what is important in assessing mental capacity is to focus on the processes by which a decision is made, rather than on the decision itself. Here is some useful information about Mental Capacity Act: https://www.mind.org.uk/information-support/legal-rights/mental-capacity-act-2005/about-the-mental-capacity-act/ Will the Deputy have to show their fitness to act? The court will require the proposed deputy to complete a deputy’s declaration (COP4) to ensure they are financially sound and understand their responsibilities as deputy. How does the Court of Protection decide whether a Deputy should be appointed? The court will decide whether the person lacks capacity and what sort of decisions the deputy will need to make. This will be set out in a court order. What powers will the Deputy have? Only those which are set out in the court order. The deputy will usually be allowed to: deal with any income, and to pay any bills and debts; deal with any cash assets, e.g. bank and building society accounts; manage or sell property; make small gifts on special occasions such as birthdays; and deal with any capital assets and make any investment decisions. Does the Deputy have complete control over the person’s affairs? No, the deputy can only do what it says in the court order. They must also work within the rules set out in the Mental Capacity Act 2005 and the Code of Practice that accompanies this Act. How long will it take? It can take 5 to 8 months for a deputy to be appointed, although recently the applications are being severely delayed. It often takes even longer if the court needs more information to decide the application. To avoid delay, it is important that all of the forms are completed properly, and the court is given all the relevant information at the outset. In very urgent cases, it is possible to ask the court to grant an interim order, for example to access funds to pay debts. Are Deputies supervised? Deputies are supervised by the Office of the Public Guardian (OPG), and the deputy must send a yearly report to the OPG explaining what decisions they have made and accounting for the money they have spent. The deputy can instruct a solicitor or accountant to prepare the annual report on their behalf. We hope that this blog has answered some of the most common questions, however, if you have any specific questions, please do get in touch with our Court of Protection team to discuss your options and receive expert advice. WAYS IN WHICH WE CAN ASSIST Court Of Protection Lasting Power of Attorney Probate & Administration of Estates Making a Will Trusts Call us today on 0208 515 2790