Court of Protection

An office of the High Court, with power to make decisions in relation to the property and affairs, health care and personal welfare of adults (and children in a few cases) who lack mental capacity to make these decisions for themselves. The Court also has the power to make declarations about whether someone has capacity to make a particular decision. The Court of Protection (COP) has the same powers, rights, privileges and authority in relation to mental capacity matters as the High Court. The COP also has the authority to appoint someone to make decisions on an ongoing basis for a person who lacks mental capacity to do so for themselves. This person is called a Deputy.

If a family member or friend loses the ability through mental incapacity to make their own decisions you can apply to the Court of Protection for permission to make decisions for them. To apply, you will need a doctor’s certificate to confirm to the Court that the person you are applying on behalf of cannot make decisions for themselves. You will also be required to complete some Court forms.
It is very important that the Court forms are filled in properly or they will be sent back. It can take a long time to complete the forms and it is important that you know exactly what powers you will need to apply for. For example, you might only need the power to help your friend or relative to manage their money, or to make decisions about what treatment they receive in hospital. Or you might need a much more general power, which will allow you to help them with all their day to day decisions about their money, their property, and their health and well-being.
We can help you to work out which forms you will need and we can complete them for you to make sure that they can be processed by the Court of Protection without delay.

You’ve gone through the application process and have been successfully appointed by the Court of Protection as a Deputy for your mentally incapacitated loved one. So you can now legally make decisions on their behalf. But what happens now?
When you become a Court of Protection Deputy you will receive a Deputy Order which will clearly set out the extent of your powers for making decisions on behalf of the incapacitated person in question. Your right to make decisions will differ depending on what aspects of the individual’s life you have been granted decision-making power over. Deputyships are most often granted to handle someone’s property and financial affairs but may also deal with day-to-day care, as well as medical treatment and social care interventions.
Once the Court order has been made, you will receive numerous certified copies. Make sure to check for any errors including spelling mistakes. If you come across any you should return the copies immediately with mistakes clearly indicated. If you are working with a Court of Protection solicitor, they will be able to make sure the document is correct on your behalf.
The Court sends out a number of certified copies of the order so that you will always have enough copies to prove to relevant people or organisations that you are the authorised decision maker for the person who lacks capacity. You may even want to provide relevant parties with a copy of the order before any decisions are required, so that they know to come to you when the time comes.
It’s important to always bear in mind that your decisions may be pivotal to your loved one’s overall welfare. So it’s vital to thoroughly consider all your options prior to making the final decision on any aspect of your jurisdiction, and to make sure you carry out your duties sensibly, responsibly and pro-actively at all times. You also need to ensure that:

You’ve gone through the application process and have been successfully appointed by the Court of Protection as a Deputy for your mentally incapacitated loved one. So you can now legally make decisions on their behalf. But what happens now?
When you become a Court of Protection Deputy you will receive a Deputy Order which will clearly set out the extent of your powers for making decisions on behalf of the incapacitated person in question. Your right to make decisions will differ depending on what aspects of the individual’s life you have been granted decision-making power over. Deputyships are most often granted to handle someone’s property and financial affairs but may also deal with day-to-day care, as well as medical treatment and social care interventions.
Once the Court order has been made, you will receive numerous certified copies. Make sure to check for any errors including spelling mistakes. If you come across any you should return the copies immediately with mistakes clearly indicated. If you are working with a Court of Protection solicitor, they will be able to make sure the document is correct on your behalf.
The Court sends out a number of certified copies of the order so that you will always have enough copies to prove to relevant people or organisations that you are the authorised decision maker for the person who lacks capacity. You may even want to provide relevant parties with a copy of the order before any decisions are required, so that they know to come to you when the time comes.
It’s important to always bear in mind that your decisions may be pivotal to your loved one’s overall welfare. So it’s vital to thoroughly consider all your options prior to making the final decision on any aspect of your jurisdiction, and to make sure you carry out your duties sensibly, responsibly and pro-actively at all times. You also need to ensure that:

• Your decisions are those authorised by your Court order.
• You adhere to the Mental Capacity Act’s Code of Practice guidelines.
• You follow the Mental Capacity Act’s five statutory principles.
• All your decisions are carefully made in your loved one’s best interests.
• You keep the Court updated with your personal contact details

If all this seems a little too much to deal with, there is help available – either to support you in better understanding your role and responsibilities as a Deputy or instead, to provide a Deputyship service, so that you have more time to take care of your loved one’s and your own personal needs.

One of the responsibilities of the Public Guardian (Office of the Public Guardian – OPG) is to supervise and support Court appointed deputies, especially lay Deputies. To contact the OPG for assistance or for more information on your new role go to the Ministry of Justice website here.

In addition it may be helpful to consult with a solicitor who specialises in Court of Protection matters. Court of Protection solicitors will work with you to ensure that your loved one’s ‘best interests’ are always protected and that you are in full compliance with all the statutory requirements. They will help you with the practical and financial aspects in managing someone else’s affairs. And, where you find yourself wrestling with a disagreement or dispute with other family members or a Local Authority over what’s in your loved one’s best interests, there are a few Court of Protection specialist who can help you navigate and resolve the conflict through a process of mediation.

To find a solicitor with the requisite experience try the Law Society website, search for a Court of Protection solicitor on Google or contact the team here at Gillhams Solicitors – specialists in Court of Protection matters – for a free and confidential chat.

You’ve been appointed by the Court of Protection to act as a Deputy for a mentally incapacitated person and you understand what your duties and responsibilities are – but what happens if you feel overwhelmed by these responsibilities?

How will the Office of the Public Guardian support me?

The Office of the Public Guardian oversees the conduct and decisions of Deputies, to ensure they act in the best interests of the person lacking capacity, whilst following certain guidelines. How much support and guidance you receive from the OPG as a Deputy is assessed by the following criteria:

• The complexity of the affairs of the person who lacks capacity;
• The nature of the decisions that need to be made;
• The relationship between the Deputy and the person lacking capacity; and
• The type of care the incapacitated person needs.

Once these have been reviewed the OPG will allocate the level of supervision necessary. There are four levels:
Type 1: Close supervision with regular contact between Deputy and the OPG.
Type 2a: An intermediate level of supervision for Deputies dealing with property and affairs, concerned with the monitoring of new Deputies or, where needed, short term interventions.
Type 2: A lighter level of supervision consisting of sample monitoring of cases.
Type 3: Periodic supervision for Property and Affairs Deputies managing limited assets.
Your supervision may include:

• Ongoing support provided from the OPG while you carry out your role;
• You sending in reports to the OPG when directed by the OPG to do so;
• Check ups by a Court Visitor to assess how well the Deputyship is being managed.

In all cases, the level of support and supervision provided will be regularly assessed to ascertain whether it is still relevant for you and your circumstances.

Will I need to pay for supervision?

In short, yes. Supervision fees are set by Parliament for OPG supervision. They are individually set for each case depending on the cost of providing support to both the Deputy and the person lacking capacity. Supervision fees are paid out of the assets of the person who lacks capacity and not by the Deputy.

Can I employ professionals to help me?

You are allowed to employ professionals, for example solicitors or financial advisors, to aid you in carrying out your responsibilities as a Deputy, to the best of your ability. Like supervision fees, the fees incurred from hiring professional assistance will be paid from the funds of the person who lacks capacity. Although you may hire help you cannot pay someone to take on your responsibilities as Deputy.

Will I be reimbursed for my expenses?

The Act states that you may be reimbursed for any reasonable expenses you incur whilst carrying out your Deputyship duties. For example, you can claim expenses for telephone calls, travel and postage.
The amount you are allowed to claim and what is deemed reasonable depends on the individual circumstances of each case. It is worth noting that if you claim over £500 per year the OPG may require you to justify your expenses. If your expenses are deemed excessive you may be responsible for repaying them, or in cases of extreme excess, the OPG may apply to the Court to cancel your Deputyship appointment.
It should be noted that expenses cannot be claimed for your time spent acting as a lay Deputy – this is called remuneration and can only be claimed if specifically approved by the Court. If you feel you should receive payment for the time you spend on Deputyship duties you must ask the Court in your initial application to be appointed as the Deputy.
You can find out more about your rights and responsibilities, by referring to the Mental Capacity Act 2005 – Code of Practice, or by contacting our team of Court of Protection specialists – for a free and confidential chat.

You’re clear on what your responsibilities are as a Deputy, but how do you make sure that the assets and well-being of the mentally incapacitated person you’re acting for are protected from the impact of any bad decisions made on their behalf? And how do you reduce your exposure to the impact of inappropriate decision-making?

How is a person who lacks capacity protected from abuse?

It is a criminal offence to ill-treat and/or willfully neglect any person lacking capacity. These offences apply to anyone who has any level of duty toward the incapacitated person, and this includes everyone from family and home care staff to Attorneys and Deputies. Penalties range from a fine to five years imprisonment.

Am I protected from liability as a Deputy?

If you adhere to the terms of your Court order and the laws surrounding Deputyships it is highly unlikely that you will be held legally liable. However, if you choose to act outside of your powers, even if you believe it is in the incapacitated person’s best interests, you will be liable.
If the Court decides that you have caused financial loss to the person lacking capacity they may decide to ‘call in’ the security bond, or approve the commencement of legal proceedings against you.
You can find out more about your rights and responsibilities by referring to the Mental Capacity Act 2005 – Code of Practice, or by contacting our team of Court of Protection specialists – for a free and confidential chat.

You’ve been appointed as a Deputy under the Court of Protection and you’re clear on the decisions the Court order allows you to make on behalf of the person who lacks capacity. But how do you know when not to make a decision? And in what circumstances are you’re decision-making powers restricted?

How will the Office of the Public Guardian support me?

As well as understanding the extent of your powers, it is equally as important to understand when they’re restricted. The specifics of your decision-making authority will be laid out in the Court order, however there are a number of limitations that apply to all deputies; you cannot make a decision where:

• The person in question has the capability to make this decision for him/herself.
• It relates to the physical restraining of the person, unless such restraint is immediately necessary in order to prevent them from harming themselves. In such a case the restraint must be reasonable and proportionate.
• The decision infringes on a decision made by an Attorney appointed by the person in question prior to their incapacity, save where new circumstances require a change in decision.
• The decision is one that denies the provision or continuation of treatment necessary to keep the person alive. Only the Court may make a decision in this situation.

As the Deputy, can I make family decisions on behalf of the incapacitated person?

When a decision needs to be made about a family matter, which would otherwise have been made by the incapacitated person, it’s important to seek guidance from the Mental Capacity Act 2005 – Code of Practice, as there are strict guidelines as to the decisions you can and cannot make. The Act lists several decisions under ‘Family Relationships’, which are excluded from a Deputy’s mandate, including:

• Consenting to a marriage or civil partnership
• Consenting to sexual relations
• Consenting to a divorce
• Consenting to the termination of a civil partnership
• Consenting to an adoption agency placing a child up for adoption
• Giving consent under the Human Fertilisation and Embryology Act 2008.

Elsewhere, the Code also states that as a Deputy you may not refuse another family member, or person in general, from having access to the incapacitated person if they request as much.
You can find out more about the limitations on your deputyship by referring to the Mental Capacity Act 2005 – Code of Practice, or by contacting the team here at Gillhams Solicitors – specialists in Court of Protection matters – for a free and confidential chat.