When someone has lost mental capacity, another person may have to be appointed to oversee all legal decisions for that person- this is known as deputyship. A deputyship order is put in place if the person without capacity does not already have a Lasting Power of Attorney for Health and Welfare, and it means that the person appointed as deputy can make legal decisions, usually related to finance and assets, for the person without capacity. In order to set up a deputyship, a case must be made to the Court of Protection. This is a special court responsible for making decisions on financial or welfare matters for people who can’t make decisions at the time they need to be made because they ‘lack mental capacity’.
The court of protection are responsible for:
Deciding whether someone has the mental capacity to make a particular decision for themselves
Appointing deputies to make ongoing decisions for people who lack mental capacity
Giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity, e.g. should they have major surgery or should their money be used to buy a property for them to live in
Handling urgent or emergency applications where a decision must be made on behalf of someone else without delay, for example, should life support be withdrawn
Making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration
Considering applications to make statutory wills or gifts
Making decisions about when someone can be deprived of their liberty under the Mental Capacity Act
When Would You Apply To The Court of Protection?
Usually if your loved one doesn’t have Lasting Powers of Attorney (LPAs) in place and a situation arises when they are unable to make decisions for themselves on a specific matter or series of matters it will be necessary to apply to the Court of Protection for an order or directions. Most situations tend to be around decision making as to someone’s financial affairs.
If the person losing capacity had already created an LPA or an Enduring Power of Attorney (EPA) and as long as this document is registered with The Office of the Public Guardian (OPG), the attorneys will have the legal right to manage their affairs, without the need to approach the Court of Protection. However, the Court of Protection has jurisdiction to consider disputes with LPAs or give the Attorneys additional powers if not conveyed in the LPAs.
If your loved one has not created a valid legal document before losing capacity, then it may well be that your only option is a Court of Protection application in order to be granted the authority for you to be able to act on their behalf. The Court of Protection’s remit is to give ‘directions’ and issue ‘orders’ for third parties to undertake specific actions or decisions for a person who has lost capacity and who is unable to make those decisions for themselves.
Why Would I Need A Court of Protection Lawyer?
Applications to the Court of Protection can be complex and it is important before considering taking on the role of a deputy under a court order, that the applicant considers the implications of the regulations and duties that the court requires the applicant to undertake when acting for a person that is unable to make decisions for themselves.
It is important to seek legal advice before making an application to decide whether the matter has the potential to be contentious and what the implications of that happening are likely to be. The Court of Protection will consider the application by considering what is in the best interests of the protected party and there are certain specific procedures that are required to be processed, before a person is appointed as a deputy. At LegaCare our specialist lawyers can guide patients through each stage of the Court of Protection process.
Once appointed, we will be able to assist you with the deputyship requirements from appointment, including decision making under the Mental Capacity Act 2005, regulation, Court of Protection requirements and reporting.