Court of Protection

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A lack of mental capacity

One of the injuries that may be faced after a major trauma is a brain injury which could affect a person’s ability to make decisions on their own.  This is referred to as a lack of mental capacity and The Mental Capacity Act 2005 (“MCA”) was passed to protect and give power to these vulnerable people.  A person who lacks mental capacity is often referred to as a “protected party” or “P”. 

What are the five key principles of The Mental Capacity Act?

  • Presumption of capacity – the person must be assumed to have capacity unless it is established that they lack capacity;
  • Support to make a decision – all practical steps must be taken to help P make the decision themselves before treating them as unable to do so;
  • Ability to make unwise decisions – a person is not to be treated as unable to make a decision just because they have made an unwise decision;
  • Best interest – if a decision is made or act done on behalf of P it must be made in P’s best interests;
  • Least restrictive – before a decision is made or act done the Deputy must consider whether the purpose for which it is needed could be effectively achieved in a way that is less restrictive of P’s rights and freedom of action.

If found to lack capacity the Court of Protection (“CoP”) appoints deputies to act on behalf of P. 

What is a deputy?

There are two types of deputy:

  1. A person who will act in the administration of P’s property and finances
  2. A person who will act in assisting in any health and welfare decisions for P

If there is going to be a financial settlement agreed as a result of the major trauma, e.g., with the NHS or a defendant insurer the costs of having a professional deputy appointed to act for P will be included in the financial calculations.

A deputy has to consider the mental capacity of P every time a decision has to be made. It cannot be assumed that capacity is the same at all times and for all situations.

How does an application for a Court of Protection deputyship work?

A formal application has to be made to the CoP for the appointment of a deputy, this can take several months to process. Fees have to be paid to the CoP to consider the application and to issue an Order. The Order that is made by the CoP will set out what the deputy can and cannot do. Once the deputy is appointed a security bond will be set up with an insurance provider to protect P.  The deputy has to provide an annual report to the Office of the Public Guardian (“OPG”) setting out all the decisions that have been made for P in any given year and providing full financial information, where the deputy is acting for P’s property and financial affairs.

The OPG supervises the deputy to make sure that the role is being fulfilled correctly. There are some instances where further applications are required to the CoP such as requiring permission to buy or sell property, to agree medical treatment, where someone should live or to put a will into place. The deputy must always act in the best interests of P.

Are there any circumstances where a deputy may not be needed?

If P’s only income is state benefits and they do not have property or savings, then it will not be necessary to appoint a deputy.  In these cases, the Department of Work and Pensions can appoint an appointee to manage the benefits of the person.

Who can apply for a Court of Protection deputyship order?

Deputies are usually a close relative or friend of P who is able, and willing, to make decisions on behalf of P. Deputies must be over the age of 18 and cannot be bankrupt. Whilst in the majority of cases a deputyship order appoints a sole deputy it is possible for there to be two people appointed either jointly where decisions must be taken together or jointly and severally where decisions can be made together or separately.

If there is a large sum of money awarded as part of a claim for compensation following a major injury it is common for a professional deputy, such as a solicitor, to be appointed.

Who is the Office of the Public Guardian?

The OPG is responsible for the administrative processes of the CoP. They are responsible for supervising and supporting deputies appointed by the CoP and investigate reports of misconduct or abuse by deputies.  They also maintain a panel of those willing to act as property and finance deputies and are known as a ‘deputy of last resort’ should there be no one suitable or willing to act as a deputy for P.

How much does it cost to apply for a Court of Protection order?

A court fee is usually payable in order to apply for a court order to allow someone to become someone elses deputy. There are circumstances where thre may not be an application fee depending on the type of deputyship being applied for and how much money the deputy or P has.

Applying to the CoP might seem a daunting prospect. Our team’s experience means that we understand the ins and outs and complexities of the CoP;  if you are applying on behalf of a loved one who has suffered a major trauma we will do everything we can to assist you at this difficult time.

Can you help me with Court of Protection issues?

Court of Protection issues can be complicated. Our legal experts are experienced professionals used to dealing with the complexities you may be facing.

If you would like our help or legal advice with Court of Protection issues please get in touch.

Frequently Asked Questions (FAQs) about the Court of Protection

This is an insurance product which protects P from financial loss if the deputy uses their funds inappropriately. There will be an annual premium for the bond which must be paid for out of P’s funds each year.
When making a decision a deputy must:
  • Make sure it is in P’s best interests;
  • Take into account what P may have done in the past regarding a similar issue;
  • Apply a high standard of care and take into account the views of others who are involved with P such as relatives, doctors and other professionals;
  • Make sure they have done everything they can to help P understand the decision;
  • Add all decisions made to the annual report which is sent to the OPG
A deputy must always keep their property and money separate from P’s. The deputy must also keep records of all financial transactions which are then included in the deputy’s annual account. The deputy must keep copies of bank statements, receipts, contracts for services or tradespeople and relevant letters and emails about their activities as a deputy.
The court order will set out whether it is possible to buy gifts or give gifts of money to others on behalf of P, including donations to charities. It will also say if there is an annual limit on how much can be given. Gifts have to be reasonable and proportionate and they must not reduce the level of care available for P. A further application to the CoP must be put forward to agree on large gifts.
A deputy is able to claim expenses for things that have to be done to carry out their role, such as reimbursement of phone calls, postage and travel costs etc. A deputy cannot claim travel costs for social visits or for the time in carrying out the role unless a professional deputy has been appointed to act. If a solicitor is appointed as a professional deputy their annual costs have to be assessed annually by the Senior Courts Costs Office to make sure that the costs are reasonable and proportionate for P or they can elect to take fixed costs.
We are here to support you at every stage and if you wish to challenge a decision made by the CoP, you are entitled to explore your legal options. You may be able to challenge a decision by making an application to the Court of Appeal but you will most probably need permission to do so. We can help you work out whether you are likely to win your appeal and can offer advice on the costs and funding for the challenge.

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