The Court of Protection, established under the Mental Capacity Act 2005, oversees decisions for individuals in England and Wales who are unable to make decisions regarding their health, welfare, finances, or property due to a lack of mental capacity. The Court ensures that decisions are made in the best interests of those affected.
What Does the Court of Protection Do?
The Court of Protection is responsible for several key functions, including:
- Determining whether an individual has the mental capacity to make specific decisions.
- Appointing deputies to manage the health, welfare, or financial affairs of someone who lacks capacity.
- Resolving disputes about decisions made on behalf of individuals, such as disagreements over healthcare or financial matters.
- Deciding on the validity of Lasting Powers of Attorney or advance decisions and whether they are being used appropriately.
- Authorising decisions under Deprivation of Liberty Safeguards (DoLS) ensure that individuals are not unlawfully deprived of their freedom in care settings.
When is a Deputy Appointed?
A deputy is appointed by the Court when someone is incapable of managing their own affairs, whether related to finances, health, or personal welfare. Deputies act in the individual’s best interests, taking into account the person’s wishes as much as possible. While deputies are often family members, professionals, such as solicitors, may also be appointed when necessary.
How to Apply for Deputyship
Applying to the Court of Protection typically involves completing and submitting specific forms. For example, COP3 forms assess an individual’s mental capacity, and a qualified health professional must complete them. When applying for deputyship, it’s crucial to inform the person whose capacity is being questioned. The court will then evaluate the case to ensure that decisions are made lawfully and in the person’s best interests.
Legal and Financial Considerations
Applying to the Court of Protection usually requires a fee, but there are exemptions available for those with limited financial means. In addition, Legal Aid may be available for cases involving disputes over Deprivation of Liberty Safeguards (DoLS), or for those who qualify based on their income and property ownership.
Alternatives to Deputyship
In some cases, alternatives such as a Lasting Power of Attorney (LPA) may be more appropriate if the individual still has the capacity to make such arrangements. Other options include appointing a designated appointee or creating a trust to manage the person’s affairs.
Your Role in Court Decisions
Even if someone lacks mental capacity, they should still be involved in decisions made on their behalf to the greatest extent possible. The Court considers their views and preferences, and individuals may have a litigation friend or representative to act on their behalf during the court proceedings.
Challenging a Court Decision
If you disagree with a decision made by the Court of Protection, you may appeal the decision through the Court of Appeal. It’s advisable to seek legal counsel before pursuing an appeal to understand your likelihood of success and whether you are eligible for legal aid.
