What is the Court of Protection?

If there are disputes regarding a Power of Attorney, then the issue should be directed to the Court of Protection. Furthermore, if an individual does not have a Power of Attorney to direct who should deal with their affairs, and they subsequently lose their mental capacity, the only way in which a family member or close friend can make decisions on their behalf is to apply to the Court of Protection. This method is evidently used to ensure that individuals are not taken advantage of at their most vulnerable.

To decide if an individual lacks mental capacity, a solicitor could give their opinion and will then seek medical evidence from a professional. If this medical evidence states that the individual lacks capacity, the Court of Protection will ultimately decide that a Deputy (same duties as an Attorney) should be appointed to deal with their affairs.

The existence of the Court of Protection stems from the Mental Capacity Act. The Act only applies to England and Wales. The Mental Capacity Act has five guiding principles which are as follows:

• A person will be presumed to have capacity until it is established otherwise.
• A person will not be treated as unable to make decisions unless all practical steps have been taken to help them without success.
• A person has the right to make unwise or eccentric decisions. Doing so will not result in them being treated as unable to make a decision.
• An Attorney or Deputy must make all decisions regarding the person in their best interests.
• A person’s liberties and freedoms must not be affected by decisions made and regard must be had to whether the purpose of the action can be achieved in the least restrictive way possible.

These guiding principles mean that the Court of Protection will always act for the person’s best interests. Where possible the person will be encouraged to make their own decisions. If this is not possible then a Deputy will be appointed.

Here at Seatons, we are experts in the court of protection and the mental capacity act. We have years of experience in ensuring the best outcome for you, the client.

As with all Courts, the same set of privacy guidelines apply. To protect the identity of the person who does not have capacity, all Court documents will refer to them as ‘P’ (Protected Person) throughout proceedings.

There are many safeguards which are built into the Court of Protection to ensure that they do, in fact, lack capacity to make decisions, this includes the need for a doctor to confirm their capacity. This prevents someone who does have capacity having decisions made for them.

If the estate in question deals with large amounts of money, then the Court may appoint a professional Deputy who will oversee the management of the estate. All Professional Deputies are governed by the same Office of the Public Guardian guidelines that govern other Deputy’s and therefore must act in the best interests of ‘P.’ Also as a professional Deputy, they must discuss all decisions with the family and the clients care provider prior to acting.

A Deputyship is often seen as more secure as a Lasting or Enduring Power of Attorney. As a Court appointment, they are subject to supervision by the Office of the Public Guardian and dependant on the extent of the role of the Deputy and the relation that they have with ‘P’ dictates the level of scrutiny that the Deputy will have. For example, they must submit yearly accounts and an annual report detailing the decisions that have been made the person’s behalf.

At Seatons, we take the time to ensure that you fully understand what is going on. We eliminate the legal jargon and take the time to carefully explain what is going on.

The role of the Court of Protection and the Deputy will end either, when the person dies or if they re-gain capacity and are able to make decisions again. The order may also only last for a set period of time. If this is the instance, the Court will set out the time period and at the end of that time you should re-apply to the Court. Under some circumstances the Deputy may wish to retire from the role. To do this they must apply to the Court for the Order to be discharged.

What Next?

Here at Seatons we have a team of friendly professionals who are willing to help you and your loved one through every step of this process. If you think that a relative or close friend is losing the capacity to make decisions on their own, you must act quickly, as without proper help and support they may find themselves in a very difficult situation.