What is the role of the Court of Protection?

5th Nov, 2018 — Written by Helen Starkie

Until a situation occurs which requires them to deal with this body most people give the Court of Protection little thought – but we all should because it is very likely that each l of us will to have to deal with it at some time.

The Court of Protection’s role is to protect the interests of anyone who lacks the legal capacity to make their own decisions – be those in relation to the person’s finances or their well being.

In an ideal world all adults would have had the foresight to make a Lasting Power of Attorney appointing someone of their own choosing to make decisions for them should they ever lose their mental capacity to make them for themselves. If an LPA exists, then the person appointed to act as Attorney will have a responsibility to step into the breach and ensure that the best interests of the person lacking full capacity are protected. But it is not an ideal world and many people have still not got around to making LPAs – and in these cases if they lose their mental capacity then the Court of Protection can step in.

The Court cannot make all day to day decisions for every ‘patient’ – that would be far too onerous and expensive, so it delegates its day to day decision-making role for each patient by appointing for them a Deputy. When it appoints a Deputy, the Court defines the extent of his or her authority in an Order. The Deputy is usually granted very wide powers to make decisions for the patient.

However, the authority of the Deputy does not extend to making a Will for the patient, making significant gifts from the patient’s assets or issuing legal proceedings on the patient’s behalf. A welfare Deputy may not make financial decisions; a financial Deputy may not make welfare decisions. If a Deputy wishes to step outside his or her remit he or she must apply to the Court of Protection for specific permission to do so.

The Court oversees the Deputy’s activities and will also be instrumental in resolving issues or problems which the Deputy is unable to resolve personally – and it will deal with the appointment of a new Deputy if the existing one falls by the wayside or cancelling the Deputyship altogether if the patient recovers his or her capacity to make their own decisions.

Whilst in office a Deputy must always act in the best interests of the patient and strictly in accordance with the provisions of the Mental Capacity Act 2005 and Code of Conduct. They may act only in respect of those matters with which the patient cannot make decisions for themselves and aim to involve the patient as fully as possible in those decisions which the Deputy is making. The Deputy must keep the assets of the patient separate from any one else’s. They must take proper advice from appropriately qualified specialists when dealing with different aspects of the patient’s affairs, must file an annual tax return if required by the Revenue to do so, must take out an insurance bond to protect the assets under their control – and, crucially, must keep full accounts and report each year to the Public Guardian.

So – who can be a Deputy? Often a relation of the patient is appointed, but sometimes that is not practical – the relation may be too burdened by caring for the patient to deal with paperwork – or he or she may simply not be very confident dealing with financial matters – or there may be a disagreement between relations as to which of them should take on the role. In such cases a solicitor specialising in this area of law is usually appointed as Deputy. He or she may be nominated by the family of the patient or the Court may nominate one. Such a Deputy is bound, in addition to the rules mentioned above, by professional rules set by the Solicitors’ Regulation Authority and their costs for acting as Deputy are strictly limited by the Court and must be approved annually by the Public Guardian.

Helen Starkie (March 2018) Bath Life

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