UK Care Guide: What does the Court of Protection do and how can it help you or your family?

Sunday 26 February 2017

What does the Court of Protection do and how can it help you or your family?

The Court of Protection (COP) makes decisions on financial or welfare matters for people who cannot make decisions at the time they need to be made.

When a family member, friend or loved one lacks mental capacity to make their own decisions it can be a traumatic time for all involved. It will be difficult or impossible to deal with any assets in their name as authorities will only deal with the person who lacks mental capacity.

In an ideal world, the incapacitated person will already have in place valid health and welfare lasting powers of attorney as well as property and financial affairs lasting powers of attorney, appointing chosen people to step into their shoes and manage their affairs if the need arises.

But making lasting powers of attorney is not always possible. The person may already lack mental capacity when such documents would be useful or if there are powers in place then perhaps they are no longer fit for purpose.

In order for a person to take control of someone’s affairs, they will need to apply to the COP. The www.gov.uk website summarises what the COP is responsible for:

deciding whether someone has the mental capacity to make a particular decision for themselves

appointing deputies to make ongoing decisions for people who lack mental capacity

giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity

handling urgent or emergency applications where a decision must be made on behalf of someone else without delay

making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration

considering applications to make statutory wills or gifts

making decisions about when someone can be deprived of their liberty under the Mental Capacity Act

The foundation of any COP application is an assessment of the mental capacity of the individual to whom the application relates, usually referred to as the “patient” in court.

Once the COP is satisfied the patient lacks mental capacity, they will then look at the application being made and decide whether to issue a court order. The COP will want to hear all sides of the story and may direct relatives, friends, carers or other interested parties to be made aware of the application.

Typical applications to the COP include applying to be a patient’s “deputy”. The end result is similar to that of being an attorney under a lasting power of attorney where in most circumstances a deputy has general control over property and financial affairs. However, the deputy must demonstrate to the COP they are fit for the role and will have various levels of court supervision during their tenure.

Applications can also be made for “one-off” decisions such as making gifts or signing a “statutory Will” (signing a Will for someone who lacks mental capacity) on behalf of the patient. These can be complex applications requiring a detailed assessment of the patient’s affairs. All parties that may be affected by the COP issuing an order in favour of the application will be invited to have their say.

The COP is increasingly being asked to decide on health and welfare matters. It is rare for the COP to grant a general health and welfare power to a deputy but they do consider one-off decisions perhaps if there is a disagreement as to a care provider. The COP can step in to make a decision where there is a deadlock.

If you find yourself in the position of having to consider a COP application then seek professional advice.

Here are 8 FAQs on Court of Protection applications and deputyship

What is a deputy?

A deputy is the person or persons appointed by the Court of Protection to deal with the affairs of the person who has lost capacity and can no longer manage their own affairs

What can I do as a deputy?

Under a property and affairs order, you as the appointed deputy can take full control of your loved one’s financial affairs. You can streamline their accounts, pay off all their debts, and apply for benefits that they may be entitled to. You can also sell their home if they are in residential or nursing care and their care fees need to be paid from the sale proceeds.

Can I make welfare decisions?

You can only make welfare decisions if you have applied and been awarded the personal welfare order. Then and only then can you make decisions for your loved one and decisions that you can make will be stipulated in the order by the court.

Will I have to report to the Court with decisions that I make?

As a property and affairs deputy, you will be expected to complete an annual account on a yearly basis and this will document what decisions you have made on behalf of your loved one during the past year. It is very important that you document all that you do for your loved one, keep good clear records of everything that you have paid out and keep all receipts and statements.

What happens if I can no longer act as deputy?

If the appointed deputy can no longer act for the person who has lost capacity for whatever reason, another application would need to be made to the court for a new deputy to be appointed.

What happens if the person the order is about regains capacity?

If this happens, then an application would need to be made to the court for dispensing of the current deputyship order; medical evidence would also need to be submitted confirming the regaining of capacity.

Can I be paid for acting as deputy?

No. Only a professional deputy can be paid for dealing with financial affairs under a deputyship order. A lay deputy (a non-professional) person can claim reasonable expenses.