Court of Protection
What is the Court of Protection?
The Court of Protection makes orders relating to finances and property and/or health and welfare matters for a person who lacks capacity to make decisions.
The Court’s most common type of order appoints a deputy to manage the financial and property affairs of a person who does not have capacity to make these types of decisions for themselves.
Many people make a Lasting Power of Attorney (LPA) to allow an attorney to make decisions if they need assistance with these matters (immediately or in the future). However, if a person has lost capacity through illness or accident, or if the person has never had capacity due to lifelong disabilities, a LPA would not be possible and an application to the Court of Protection would be needed to appoint a deputy.
Most Court of Protection orders relate to property and finances, but the Court can also make orders in relation to health and welfare matters. It is unusual for a health and welfare deputy to be appointed, as generally the Court makes orders to deal with a particular decision that needs to be made – such as about where a person who lacks capacity should live, or in relation to medical treatment. Many types of health and welfare decision can be made in a person’s ‘best interests’ under section 5 of the Mental Capacity Act 2005, so the Court is often involved in cases where there is a dispute about the decision. This could be between family members, or it may involve social care and/or medical professionals.
It should be noted that a person with limited finances made up of state pension or benefits income may not need a deputy. The Department for Work & Pensions (DWP) can agree for an appointee to act to manage benefits without the need for a LPA or deputy order from the Court of Protection. However, being an appointee is very limited role, and does not permit access to bank accounts, private pensions or other finances/property.
Samantha Hamilton, Head of Court of Protection team at Mullis & Peake, said:
“Applications to the Court of Protection can take a long time to be dealt with. At the time of writing applications take around nine months for an order appointing a deputy to be received. This should be an incentive for those able to make a LPA to do so, as it allows for a person to act as attorney quickly when assistance is needed. A lengthy wait for the appointment of a deputy means that they may be no access to funds or authority to assist with financial matters for many months.”