Court of Protection

The Mental Capacity Act 2005 is the legislation in England and Wales that provides a framework for making decisions on behalf of individuals who lack the mental capacity to make those decisions themselves. It ensures that any action taken is in the best interests of the person who lacks capacity.

A deputy is an individual appointed by the Court of Protection to make decisions on behalf of someone who lacks mental capacity. They can be appointed to protect property and financial affairs or personal welfare.

‘Best interests’ means considering what is best for the person who lacks capacity, accounting for their past and present wishes, feelings, beliefs, and values. Decisions should restrict their rights and freedoms as little as possible so they can continue to live as happily and independently as possible.

A deputy must act in the best interests of the person they are appointed to help, ensuring their financial and personal welfare needs are met. They may manage finances, make healthcare decisions, and ensure compliance with the Court of Protection’s orders and the Mental Capacity Act 2005.

A deputy only makes decisions within the scope set by the Deputy Order made by the Court of Protection. This means they will manage specific areas, such as financial matters or personal welfare, as defined in the court order. They will not make decisions in other areas.  If a decision needs to be made which is not covered by the Deputy Order eg making a Will, then a separate application for specific permission will need to be made.

The costs associated with the deputy’s duties are typically paid from the funds of the person who lacks capacity.

The Office of the Public Guardian (OPG) monitors deputies to ensure they act in the best interests of the person who lacks capacity. Deputies must report to the OPG regularly and may be subject to audits.

A deputyship is usually intended to last as long as the person lacks capacity. However, the Court of Protection can review or revoke it if circumstances change or the deputy is not acting in the person’s best interests.

The Office of the Public Guardian (OPG) is a government body responsible for supervising deputies, ensuring they act in the best interests of the person who lacks capacity, and maintaining registers of Lasting Powers of Attorney and deputyship orders.  It also has the power to investigate attorneys and deputies if it considers there is reason to do so.

The Official Solicitor is a public official who as Litigation Friend for individuals who lack mental capacity and do not have anyone else to represent them in legal matters. They can be appointed by the Court of Protection to act on behalf of the person in question.  Most cases do not require the Official Solicitor’s involvement.

To apply for a deputyship order, application forms need to be completed and submitted to the Court of Protection, providing evidence of the individual’s lack of capacity and information about their personal and financial circumstances.

A Lasting Power of Attorney (LPA) is set up by an individual while they still have capacity, appointing someone to make decisions on their behalf in the future. A deputyship order is granted by the Court of Protection when an individual has already lost capacity and no LPA is in place.

The time required to obtain a deputyship order varies, but it typically takes several months. The process involves submitting detailed forms, providing medical evidence, and sometimes attending a court hearing.