The Court of Protection was set up under the Mental Capacity Act 2005 to protect the rights and interests of people who lack mental capacity.

The Court’s powers include:

– Assessing mental capacity
– Making one-off decisions for people on financial and welfare matters
– Appointing Deputies to make decisions on another’s behalf
– Making Statutory Wills for people who cannot make a Will themselves
– Hearing urgent and emergency applications where an immediate decision needs to be made for someone (such as to consent to medical treatment)
– Ordering the sale of jointly owned property
– Making and hearing challenges to Deprivation of Liberty Orders
– Hearing challenges to the registration of Enduring and Lasting Powers of Attorney

It varies depending on factors such as the type of application you are making, the complexity of your case and whether anyone challenges your application.

For example, for straightforward Deputyship applications, the application process usually takes around 3-4 months.

We can provide further advice on time estimates and how long your Court of Protection application could be expected to take.

The general application fee for Court of Protection applications is £365 (or £465 where there needs to be a hearing).

There are other types of fees depending on the type of application you make. For example, for Deputyship applications, once your application is approved, you will also have to pay an annual supervision fee of £320 (or £35 for Deputies managing estates of less than £21,000) and a one-time assessment fee of £100. However, it is usually possible to claim these extra costs from your loved one’s estate.

We can provide detailed advice about how much your Court of Protection application is likely to cost at the beginning of your case so you can proceed with full control over your spend.

A Court of Protection Deputy is someone authorised to make decisions on behalf of a person who lacks the mental capacity to make their own decisions.

There are two types of Court of Protection Deputy:

– Property and Financial Affairs Deputy – to do things like manage a person’s bank accounts, pay their bills, collect their pension and benefits, and sell their property
– Personal Welfare Deputy – to make decisions about things like a person’s care, medical treatment, and day-to-day activities

A person can either be one type of Deputy or both kinds. However, the Court will usually only appoint a Personal Welfare Deputy if there are concerns about whether a person’s loved ones can make decisions in their best interests (for example, if there are family disagreements about their care).

If you need to support a loved one, it might be surprising to know that unless you have legal authorisation, you will probably be prevented from making important decisions.

For example, if you need to manage someone’s bank accounts, banks will not deal with anyone but the account holder without legal authorisation. If your loved one did not make a Lasting Power of Attorney appointing you as an Attorney, a Court of Protection Deputyship Order is the authorisation you need.

There are a number of forms and other documents that need to be filled in when applying to the Court of Protection to become a deputy. It is important to make sure all of these documents are filled out accurately to ensure there are no delays and to avoid the risk of your application being rejected due to basic errors.

The documents you need to fill out and submit to the Court of Protection include:

– An application form
– An assessment of capacity form (recording an independent medical expert’s option of your loved one’s mental capacity)
– A deputy’s declaration (explaining your personal and financial situation and how you would make decisions for the subject of the application)
– An information form (describing the decisions you will need to make on behalf of your loved one)

Our Court of Protection lawyers can guide you through the entire application process, ensuring you are able to secure your deputyship quickly and efficiently so you can start supporting your loved one as soon as possible.

As long as you are aged over 18, you will normally be able to apply to become a Court of Protection deputy for a family member or friend. Solicitors can also act as professional Court of Protection deputies if required.

It will be up to the Court to decide if you are a suitable person to act as someone’s deputy. They will typically consider how closely connected you are to the person who needs a deputy and your ability to carry out the required duties when making their decision.

If you have been declared bankrupt the court will consider the circumstances of this when considering if you are a suitable person to manage another person’s finances.

You can apply to the Court of Protection to become someone’s deputy if they are judged to lack the mental capacity to manage their own affairs and if they are considered to have assets and/or medical or personal care needs that they need assistance with.

A person may be deemed to lack mental capacity if they are unable to:

– Understand important information required for an informed decision
– Retain the relevant details for long enough to make an informed decision
– Evaluate the key details required to make an informed decision
– Communicate their decisions effectively to the necessary people

Circumstances where someone may be considered to require help to manage their affairs include:

– They have a property that needs to be sold
– They have more than £16,000 in savings
– They have a significant regular income
– They have a specific medical issue that needs treatment
– Their care needs have changed and decisions need to be made about their future care

Deputies have powers to act within the scope of the Deputyship Order drafted by the Court. They are authorised to make decisions on behalf of someone if they lack the capacity to make their own decision at the time it needs to be made.

Deputies have strict duties to act in certain way. For example, they have a duty to:

– Act in the best interests of the person for whom they are making decisions
– Act with due care and skill
– Not to take advantage of the person
– Not to delegate their duties to someone else
– To act in good faith
– To respect the person’s privacy and confidentiality
– To comply with the Court of Protection’s directions

Financial Affairs Deputies also have duties to keep and file accounts and to keep the person’s money and property separate from their own.

Deputies must not make a decision for someone if they are able to make it themselves. The Deputy should try to help the person make their own decision as far as possible, even if the Deputy disagrees with the decision made

Deputies cannot make a Will on behalf of someone who lacks mental capacity. They must also be careful not to restrain the person for whom they are making decisions or unlawfully restrict their liberty.

Deputies do not have the freedom to make all decisions without restriction.  Some decisions that a Deputy may need to make have to be approved by the Court of Protection

We can provide advice on the limits to your Deputyship powers and ensure you are able to carry out your role fully in line with the Deputyship Order and your other legal duties.

Mental capacity is defined under the Mental Capacity Act 2005. A person lacks mental capacity when they have an illness, disability or condition that means they cannot:

– Understand information provided to them about a particular decision
– Retain that information for long enough to make the decision
– Weigh up information to make the decision
– Communicate their decision, either verbally or through other means such as sign language

The Mental Capacity Act outlines a two-stage test to assess capacity:

1. Does the person have an impairment of the brain or mind, whether it is because of an illness or other factor such as injury or substance abuse?
2. Does the impairment mean that the person is unable to make a specific decision when they need to (using the four indicators above)?

There are five principles that must be taken into account when assessing someone’s mental capacity to make a particular decision:

1. Always assume that a person has mental capacity until proven otherwise
2. Do not decide that someone lacks capacity until you have taken all practicable steps to help them make the decision
3. A person many not be incapable just because they make an ‘unwise’ decision
4. Always make decisions in a person’s best interests
5. Before making a decision on someone’s behalf, always consider whether there is a less restrictive way to achieve the same outcome

When you apply to become a Court of Protection deputy for a loved one, you will need to have them assessed by an independent medical expert to establish whether they truly lack the mental capacity to manage their own affairs.

After this, a specialist Court of Protection judge will make the ultimate decision over whether your loved one has mental capacity or not, based on the independent medical expert’s assessment.

It is often the case that someone may be found to lack mental capacity in some ways, but not others – for example, being unable to understand or manage their finances, but being clear about whether they wish to stay in their home or not. A judge will take this into account when deciding what type of Court of Protection deputyship it is appropriate to issue.