At any stage of life, someone can lose their mental capacity; the ability to make or communicate decisions that affect their day-to-day life. For example, you might lose capacity if you have:
- Dementia
- A stroke
- A mental health condition
- A brain injury
- A severe learning disability
- Unconsciousness due to an accident or anaesthetic
In these circumstances, the Court of Protection can step in to safeguard vulnerable individuals. But what exactly is the Court of Protection, and how does it work in the UK? In this article, our experts will explain everything you need to know.
What Is the Court of Protection in the UK?
The Court of Protection was established under the Mental Capacity Act 2005 and came into force in 2007 in the UK. It’s a specialised court that protects adults who lack capacity by either making informed decisions or appointing a deputy to make decisions on their behalf. The Court of Protection oversees decisions in certain cases or appoints a deputy. These decisions may relate to:
- Finances: Managing bank accounts and investments, and ensuring all outstanding bills are paid in full.
- Property: Managing the entire estate and selling or buying property.
- Health Care & Personal Welfare: Arranging care provision, consenting to medical treatment and deciding where someone should live.
Any decisions made by either the Court of Protection or a deputy must be in the person’s best interests in accordance with the Mental Capacity Act 2005.
When Does the Court of Protection Become Involved?
The Court of Protection usually becomes involved in a case when someone lacks mental capacity and has no valid Lasting Power of Attorney (LPA) to resolve disputes or make decisions on the person’s behalf.
In these situations, the Court of Protection can:
- Decide whether the person has capacity
- Make decisions for the person
- Appoint a deputy to make decisions
- Decide whether an LPA is valid
- Remove deputies or attorneys
- Hear objections to registering an LPA
Court of Protection vs LPA
The Court of Protection and LPA are often heard together, but what are the differences? Here’s a useful comparison:
| Court of Protection |
Lasting Power of Attorney |
| Used after capacity is lost |
Set up while capacity remains |
| Court appoints deputy |
Individual chooses attorney |
| Court decides who should act |
Individual chooses who acts |
| Court supervision required |
Less court involvement |
| More costly and time-consuming |
Simpler and less expensive |
The key difference between the Court of Protection and an LPA is that an LPA requires forward thinking and planning to put the measure in place before the person loses capacity. Although this takes time, it’s considered best practice to have an LPA in place and could save time and money in the future. To learn more about LPAs, read our expert-led guide.
Now, let’s take a closer look at how the Court of Protection works with these four simple steps.
How Does the Court of Protection Work?
Step 1: Assessing Mental Capacity
The process starts with an assessment of the person’s mental capacity. It’s important to understand that this isn’t an intelligence test; it will determine if the affected person can make informed decisions for themselves.
The first step is to determine whether the person has an impairment, such as dementia or an injury, that could prevent them from making effective decisions. If so, the next step will be to figure out if this impairment is hindering their decision-making skills.
Step 2: Making an Application
If the court determines that the person lacks capacity, then you can make an application to be appointed a deputy for any ongoing, one-off, or emergency decisions for the affected person. A wide range of people can apply to be a deputy, including:
- Family members
- Friends
- Local authorities
- Solicitors
- Healthcare professionals
The court will only appoint someone it believes is suitable for the position and will act in the person’s best interests.
Step 3: Court Review
As part of the application process, a great deal of evidence is needed to support why you’d be a good fit as a deputy. This involves gathering medical records as well as other supporting documents.
This can be a complex step, especially when families are already managing difficult circumstances. Working with an experienced solicitor with expertise in deputyship applications can help to ensure the application is completed correctly and efficiently.
Step 4: Decision or Appointment of a Deputy
If all the necessary evidence and documents have been provided, the appointment should be a straightforward process.
However, if there have been disputes over who should be a deputy or the case involves significant or complex decisions for the affected person, the Court of Protection will schedule a hearing.
Once a formal decision has been made and you’ve been appointed as deputy, you’ll receive an order outlining your powers and responsibilities.
How Harding Evans Can Help
The Court of Protection is an invaluable system for those who were unable to make an LPA while they had capacity. However, it can be a long process to be appointed as a deputy. So, if you’re concerned about a loved one’s capacity and need help making a deputyship application, Harding Evans can help.
Our team can support you every step of the way with your deputyship application, providing expert advice on mental capacity issues, disputes, and paperwork, all while offering compassionate and understanding support. And Laura Selby, our Head of Wills & Probate, and Tim Haggar, Consultant, are Government-approved panel deputies, meaning they can be appointed as deputies in specific circumstances.
To find out more, get in touch with Tim on 01633244233.
