In England and Wales, approximately two million people lack capacity to make decisions for themselves. the Mental Capacity Act 2005 was put in place to protect the right of vulnerable people over the age of 16 to make their own decisions, wherever possible.
The law also provides a viable framework that protects those who may have lost capacity.
In this blog post, we explore how the Court of Protection works under the Mental Capacity Act.
What is the Court of Protection?
The Court of Protection is part of the Family Division of the High Court. This is a specialist court that can make decisions or appoint others to make decisions on behalf of someone who can no longer manage their own affairs.
What is a Deputyship Order?
A Deputyship Order is a legal document that enables an appointed representative to manage the property, financial affairs and/or health and welfare of the person who has been deemed unable to make those decisions.
The Court of Protection usually appoints a deputy if there is no Lasting Power of Attorney (LPA) in place. The court will decide on the length of the Deputyship, what fees are applicable, and how much supervision the appointed Deputy will have over the individual in question.
What decisions can the Court of Protection make?
The Court of Protection can rule on a variety of issues, including who should be appointed as a Deputy, what powers the elected person has, deciding where a person should live and the type of care and medical treatment they should receive, as well as deciding whether or not a person ‘has capacity’ to make certain decisions about their welfare and financial affairs themselves.
Who can apply to the Court of Protection?
You can apply if you’re aged 18 or older and the matter that you need the Court to decide is about you.
If the individual in question is under 18 and you are their designated legal guardian, then you can also apply to the Court of Protection without permission.
Anyone over the age of 18 can apply to the Court of Protection for a deputyship, whether this is for welfare or relating to property and affairs. The person applying will need to demonstrate that they are capable of handling finances on behalf of someone else.
What is the difference between Power of Attorney (POA) and the Court of Protection?
There are some key differences between the Court of Protection and POA. These include:
- POA can only be executed when the person in question has capacity, whereas, with the Court of Protection, a deputy is only appointed when the person has been deemed to lack capacity by a medical professional.
- With POA, the person in question can choose who to appoint as an attorney. While a person can express their wishes as to who they would like to have deputyship, ultimately the Court of Protection has the power to make the final decision.
The costs involved also differ between POA and Court of Protection applications, as well as the time it takes for applications to be processed and Deputyships and LPAs to be registered.
Do I need to seek legal advice?
Whilst it is possible to act without legal aid, the process can be overwhelming and emotionally taxing without the support of a legal professional.
At Peter Ross, we are committed to delivering empathetic advice with understanding and care. Whether you need support with your application or require Deputyship, we are here to help and provide reassurance.
For more information or to speak to one of our experts, please contact us.