Court of Protection – Frequently asked question

Based at an unassuming building in High Holborn London, the Court Of Protection sits in the same building as The Family Courts. According to the Government website, they describe their activities as:

• 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

• handling urgent or emergency applications where a decision must be made on behalf of someone else without delay

• 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

Wikipedia describes the Court of Protection as having “jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves”.  What are the important things people should know?

Q: What is the Court of Protection?

A: The Court of Protection deals with decisions and actions relating to the Mental Capacity Act. 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 on a daily basis.

Q: When would you need a Deputy?

A: If someone has not made a Lasting Power of Attorney and has lost mental capacity, it may be necessary to appoint a deputy. It is more common for the court to appoint a property and financial affairs deputy.

Q: What is a Lasting Power of Attorney?

A: This is a way for an individual to plan for the future. It is a legal document which appoints someone to act on your behalf, and they are known as an Attorney.

Q: What is the difference between an Attorney and a Deputy?

A: The main difference is that an Attorney is appointed before someone loses capacity to make their own decisions, and the Attorney is chosen by that person. Whereas a Deputy is appointed once someone has lost capacity and is chosen by the Court.

Q: How long does it take for the court to appoint a Deputy?

A: Usually four to six months. However, there is a pilot scheme that we are involved in that means that we are getting orders made much quicker than this at the moment, more like 3-4 months.

Q: What do you need to do if you want to sell someone who has lost capacity’s property?

A: When applying to become a deputy, you can request authority to sell their property as well. The Court is unlikely to give you authority to sell someone’s property without evidence that they will not return home.

Q: What is a statutory Will?

A: 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. You can apply for a statutory Will if they already have a will or if there has been a significant change since they made their Will.