Court of Protection – Frequently Asked Questions (FAQs)
Reasons to choose Wilson Browne
What is the Court of Protection?
- The Court of Protection deals with decisions and actions relating to the Mental Capacity Act 2005. The Court can make specific decisions about someone’s property and financial affairs or their health and welfare when they do not have the mental capacity to make these decisions for themselves.
- Alternatively, the Court may decide to make a deputyship order appointing a Deputy to manage these decisions daily.
What is a Deputy?
- A Deputy is someone appointed through the Court of Protection to manage someone else’s affairs where they lack the mental capacity to do so themselves.
- There are two types of Deputy: property and financial affairs, or health and personal welfare.
- A Deputy can be a partner, family member, friend, or where nobody is willing or able to be appointed (which could be because there is nobody available, or due to the complexity of the person’s property, assets, health), a professional may be appointed through the panel of deputies.
What can a Property and Financial Affairs Deputy do?
This would include things like:
- Managing bank accounts or investments
- Buying a property
- Maintaining a property by paying bills, insurance, renovations, and general management
- Selling a property if someone needs to go into a care home
- Paying care home fees
- Applying for and managing benefits
What does a deputyship order look like?
- Once the Court have issued their Order, it is important to read carefully what this sets out.
- It will explain what your powers are and your responsibilities. For example, it may clearly set out that you are able to sell a property or not.
Who can apply to be a Deputy?
- You need to be over 18 years old to apply to be a Deputy and demonstrate good character. For example, do not have a criminal record or have been declared bankrupt.
- You will need to have a good relationship with the person and be able to explain this, along with your involvement in their life.
Who are the OPG?
- They are a government body in England and Wales which supervises Deputies to help them carry out their duties and responsibilities.
- They have investigative powers and can ask Attorney’s and Deputies to account for their actions and refer to the Court of Protection if there has been a misuse of power.
What is a Lasting Power of Attorney?
- It is a legal document which appoints someone to make decisions on your behalf, and they are known as an Attorney.
- These are made when a person has the capacity to choose an Attorney to manage either their property and financial affairs, or health and welfare, or both.
What is the difference between and Deputyship and a Power of Attorney?
- A Lasting Power of Attorney is put in place by someone while they have capacity. The individual chooses who their Attorney(s) will be.
- A Court of Protection Deputyship order is where the Court appoints a Deputy to act on behalf of an incapacitated person.
How long does it take for the court to appoint a Deputy?
- Usually 6-9 months.
Can a Deputy sell a person’s property?
- When applying to become a deputy, you can request authority to sell their property as well. The Court is unlikely to give authority to sell someone’s property without evidence that they will not return home.
- You may need to make a separate application once appointed as Deputy to obtain authority to sell a property if the original order does not allow this.
- A Deputy cannot sell a jointly owned property, and a separate Trustee application will need to be made.
What is a statutory Will?
- This is a Will that is made and authorised by the Court of Protection on behalf of someone who lacks capacity to make their own Will. You can make an application for a statutory Will if someone doesn’t have a Will or change an existing Will if there has been a significant change in circumstances.
