News

Court of Protection & Mental Capacity

Court of Protection and Deputies - frequently asked questions

August 31, 2017

Susanna Nichols looks at some of the commonly asked questions about the Court of Protection and being a Deputy.

Hero03031

What is the Court of Protection and a Deputy?

The Court of Protection is a specialist court for all issues relating to people who lack the mental capacity to make specific decisions. The Court can make decisions and appoint Deputies to act on behalf of an individual. The Deputy might be a friend or relative or if there isn’t anyone suitable, a professional Deputy will be appointed. Professional Deputies are approved by the Court of Protection and are usually solicitors who specialise in this area. 

The Deputy can make decisions about somebody’s healthcare and personal welfare or their property and financial affairs. 

There are two types of Deputy:

1.    A Deputy for property and affairs to look after the personal finances and property of somebody who lacks the capacity to look after their own affairs; and

2.    A Deputy for personal welfare to look after an incapacitated person’s health and welfare.

The Court order appointing the Deputy will set out what decisions the Deputy can make and any decisions made must be made in accordance with the principles set down in the Mental Capacity Act 2005. 

The Mental Capacity Act 2005 gave the Court of Protection power to:

  • Appoint a Deputy to make on-going decisions on behalf of a person who lacks capacity, in relation to either the person’s property and financial affairs or health and welfare; and 
  • Make decisions about property and financial affairs or health and welfare of people who lack the capacity to make such decisions themselves; and 
  • Make decisions relating to serious medical treatment, which relate to providing, withdrawing, or withholding treatment to a person who lacks capacity to make such decisions themselves; and 
  • Make decisions about a Lasting or Enduring Power of Attorney, including whether the power is valid, objections to registration, the extent of Attorney powers and removal of Attorney powers if, for example, the Attorney has not been acting appropriately; and 
  • Make declarations about a person’s capacity to make a decision, if the matter of whether they can make a decision cannot be resolved informally, for example if there is a difference of opinion between medical practitioners. 

When is the appointment of a Property and Affairs Deputy appropriate?

If a person lacks the mental capacity to make decisions about their property and financial affairs, and they have not previously made an Enduring or Lasting Power of Attorney when they had the ability to do so, then an application will usually be necessary to the Court of Protection to appoint a Deputy to: 

  • Deal with any cash assets, e.g. bank and building society accounts; 
  • Manage or sell property; and 
  • Deal with any capital assets and make any investment decisions. 

I have been appointed as a Deputy for a family member and have been told that I need to take out a security bond. Does this mean that the Court does not trust me?

This does not mean that the Court does not trust you.  The Court of Protection requires that all Deputies appointed to look after an incapacitated person’s property and affairs arrange a security bond with an insurer.

The security is a type of insurance policy designed to financially protect the person who lacks the capacity in the unlikely event that the Deputy were to mis-manage their finances.  

The requirement to arrange a security bond is a standard business precaution and is not intended to reflect on the Deputy’s personal integrity. 

The Court will set the level of the security bond and this will be determined by the level of assets owned by the incapacitated person.  The premium payable will be higher if the incapacitated person has significant financial assets. 

For more information on any Court of Protection or Deputyship issues, contact Susanna Nichols on 0117 930 7569 or email susanna.nichols@burroughsday.com

Posted by

Court of Protection and Deputies - frequently asked questions

Susanna Nichols

arrowarrow-leftburgerchevroncloseUntitled-2iconmonstr-facebook-6 (1)tick