An introduction to the Court of Protection and Deputyship. Part 1
This article is the first of two, the second article will follow next month.
The Court of Protection – what it is?
You may have not heard of the Court of Protection, but it is actually very important. The Court of Protection is a specialist Court that makes decisions on financial or welfare matters for people who lack the mental capacity to make their own decisions. There may be a variety of reasons a person lacks capacity to make their own decisions, including a physical or mental illness, a brain injury following an accident, a stroke or a learning disability.
If a person lacks the mental capacity to make their own decisions about their property, finances, health or welfare and there is not an EPA or LPA in place that allows for those decisions to be made on their behalf then an application to the Court of Protection for the appointment of a Deputy should be considered.
What is a Deputy?
The Court will decide if a person has the mental capacity to make a certain decision for themselves. If the Court decides the person lacks capacity then they can appoint a Deputy.
There are actually two types of Deputy:
1. Property and Financial Affairs Deputy
2. Personal Welfare Deputy
A Personal Welfare Deputy would make decisions about medical treatment and how someone is looked after whereas a Property and Financial Affairs Deputy would pay the person’s bills and manage investments.
You can apply to be one type of Deputy or both. Property and Financial Affairs Deputyships are more common. Health and Welfare Deputyships are only made in very limited circumstances.
Can I be a Deputy?
You need to be 18 or over to be a Deputy. A Deputy is usually a close relative or friend of the person who lacks capacity – known as a lay Deputy. However, it is possible to have a Professional Deputy, for example, a Solicitor – and several of my colleagues act as Professional Deputy. A Professional Deputy is often preferred in certain situations, for example where there is an ongoing or there has been a large personal injury claim.
Can you have more than one Deputy?
The Court can appoint more than one Deputy. You can have a joint deputyship which means all the deputies have to agree on the decision or you can have a joint and several deputyship, which means a deputy can make a decision on their own or with other the deputy.
How do I apply?
There are several forms that the Court will need to be filled in. The forms are long and detailed but it is important that they are completed correctly otherwise this could delay the application being processed by the Court.
An assessment of the person’s capacity will be needed and evidence of this submitted with the application. The capacity assessment is a key part of the application – the Court has been known to reject capacity assessments so if you are looking to arrange a capacity assessment then I would encourage you to instruct an experienced, medical professional to complete the assessment. There are a number of companies my firm uses to assist us with capacity assessments.
Do I need to attend Court?
This should not be necessary. The Court can usually make an Order based on written evidence only. If the application is objected to then a hearing will be needed. This would be held in private.
The second part of this article will be posted next month.
How can we help?
If you have any queries or questions about the Court of Protection or Deputyships then please contact our specialist Court of Protection team by email on firstname.lastname@example.org
Charlene Hughes is a Managing Associate in the Court of Protection team at Freeths LLP. Charlene specialises in property and affairs deputyships for adults and children who have an acquired brain injury often due to medical negligence, a serious accident or dementia. Charlene is also experienced in Statutory Wills, Personal Injury Trusts, statutory funding, and welfare benefits.