FAQs: Court of Protection – The Basics

1. What is the Court of Protection?
2. Is the Office of the Public Guardian different from the Court of Protection?
3. How do you apply to the Court of Protection?
4. You think that someone you know is financially abusing a friend/relative. What can you do?
5. When would the Court appoint a Deputy?
6. How would someone lose mental capacity?
7. Who decides if someone lacks capacity?
8. If someone lacks capacity does that mean they can’t make ANY decisions themselves?

What is the Court of Protection?

The Court of Protection was established by the Mental Capacity Act 2005 and helps people who are not able to make their own decisions. The Court makes decisions for them about their money, property, health or welfare when others do not agree about what is in their Best Interests.

The Court can appoint someone else, known as as a Deputy, to make decisions on an ongoing basis where the person can no longer make their own decisions. A Court will often appoint a Deputy to make decisions about Property and Financial Affairs, it is less common that they will appoint a Deputy to make decisions about Health and Welfare matters.

Is the Office of the Public Guardian different from the Court of Protection?

The Office of the Public Guardian (OPG) is responsible for supervising and monitoring appointed Deputies and Attorneys to ensure they fulfill their roles properly. The Court decides on whether an existing Attorney should be removed or replaced when the person who appointed them does not have capacity to decide, or if a proposed Deputy should be appointed.

How do you apply to the Court of Protection?

If someone you care about loses the ability to make specific decisions you can apply to the Court of Protection for permission to make decisions for them. There are some forms to be completed and a capacity assessor needs to confirm to the Court that the person cannot make the relevant decision for themselves, due to an impairment or disturbance in the function of the mind or brain.

It is very important that the forms are filled in correctly and you need to identify exactly what powers you are applying for. For example, you might only need the power to help your loved one to manage their money, or to make decisions about what treatment they receive in hospital. Or you might need a much more general power to help them with all their financial decisions.

We can help you to work out which forms you need and we can complete them for you to ensure they are processed by the Court of Protection without delay.

You think that someone you know is financially abusing a friend/relative. What can you do?

You could contact your Local Authority and ask for the Vulnerable Adults’ Team or Safeguarding Team. You can also report the issue to the Office of the Public Guardian if there is an Attorney or Deputy involved. The OPG will investigate and could make an application for the Attorney or Deputy to be removed.

We are very experienced in helping people in this situation and can also advise about whether an application to the Court of Protection could help, so do contact us for advice.

When would the Court appoint a Deputy?

A Deputy is appointed when an individual’s affairs need to be looked after because they are not capable of making decisions for themselves.

Everyone has the right to choose who will manage their affairs, should they lose the capacity to make decisions themselves. The best way is by making a Lasting Power of Attorney (LPA). If someone has not made an LPA, should they lose capacity to decide to make one, an application to the Court of Protection will be necessary to appoint a Deputy.

How would someone lose mental capacity?

Mental capacity can be lost in a number of ways; most common is moderate to advanced stage dementia which often develops in later life. Acquired brain injuries, a severe stroke, learning disabilities and severe forms of autism can also result in lack of capacity.

Who decides if someone lacks capacity?

Ultimately, it is the Court who decides. A solicitor preparing a Lasting Power of Attorney may have concerns about their client’s capacity and will seek evidence from a relevant professional such as a GP or psychiatrist. If a capacity assessment confirms that person lacks capacity the Court will normally accept this as a reason to appoint a Deputy for Property and Financial Affairs.

If someone lacks capacity does that mean they can’t make ANY decisions themselves?

No, not necessarily. The legal tests for capacity are ‘issue specific’. For example, someone who lacks the capacity to manage their financial affairs may have capacity to make decisions about daily shopping.

Likewise, someone lacking capacity to understand and arrange the payment of their care fees may have capacity to decide where they live and are cared for.

If you have further questions about the Court of Protection, or any other aspect of Community Care Law, then contact our Community Care Law Team based across Surrey and Sussex on 01273 609911, or email info@ms-solicitors.co.uk.