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The Court of Protection is a special section of the Court that was created under the Mental Capacity Act 2005 which came into force in England and Wales on 1 October 2007. The Court of Protection makes decisions about individuals who do not have the mental capacity to make the decisions themselves. The Court of Protection works alongside the Office of the Public Guardian, the official body that is responsible for supervising court-appointed Deputies and recommending action when concerns are expressed about a Deputy.
The function of both these bodies is to ensure that the affairs of anyone lacking mental capacity are handled properly and to protect potentially vulnerable individuals who may be exploited.
The Court of Protection protects individuals by directly making decisions on a person’s behalf about their financial affairs and/or healthcare issues or by appointing someone else, called a Deputy, to make those decisions on behalf of the person who lacks capacity.
The Court of Protection can make a declaration about the lawfulness of a specific act, usually in relation to a proposed medical treatment, where there is a disagreement about whether that treatment is in the person’s best interests.
The Court can also make a declaration if all other attempts to resolve a family disagreement about a major decision, such as where someone with incapacity should live, have failed. If it is suspected that someone who lacks capacity may be at risk of harm or abuse from a named individual, the Court can make a declaration empowering the local authority to stop contact between the named person and the person who lacks capacity.
The Court can cancel the appointment of an attorney if there is evidence that the Attorney if there is evidence that the Attorney is not acting in the best interested of the donor (the person who made the Lasting or Enduring Power of Attorney) and can appoint a Deputy to take over the role.
When a person is not able to make their own decisions due to mental incapacity, and they have not already put in place satisfactory provision like a Lasting Power of Attorney, it may be necessary to make an application to the Court of Protection to appoint someone called a Deputy to make those decisions on their behalf. A Deputy can only be appointed by the Court of Protection.
Anyone including a family member or friend, a solicitor or the local authority can be appointed as a Property and Affairs Deputy by the Court. Welfare Deputies with complete authority to make what could be ‘life or death’ decisions are carefully appointed. The preferred route is to make one decision at a time rather than appoint a Deputy, with those individual decisions made using the best interests’ principle.
Deputies have many responsibilities as well as a duty to make decisions in the vulnerable person’s best interests. Deputies are empowered only to make those decisions authorised by the Court of Protection. Property and Affairs Deputies also have a duty to keep accounts and keep the money and property of the incapable person, on whose behalf they are acting, entirely separate from their own finances.
Dealing with the Court of Protection can be time consuming and stressful, especially when the family are also trying to provide care. Having an experienced and Professional Deputy on hand can prove invaluable in getting the best legal advice for the person lacking capacity and their family.
Having a Professional Deputy should also give the person lacking capacity and their families, complete confidence that their affairs will be handled properly. Any court-appointed Deputy is obliged to maintain a high standard of care when making decisions.
A Professional Deputy is independent of the person lacking capacity, and so is able to make those difficult decisions that a family appointed Deputy would be uncomfortable making such as accommodation needs or refusing a request for money if it would not be in the person’s best interests to grant the request.
There is a connection between the Office of the Public Guardian and the Court of Protection but people often confuse the roles each has.
The Office of the Public Guardian also protects people in England and Wales who may not have the mental capacity to make certain decisions for themselves, but it is a largely administrative. It is not a court and does not have the powers or the authority of the Court of Protection.
The Office of the Public Guardian registers or ‘approves’ Lasting Powers of Attorney and is responsible for maintaining the public register of Deputies and people who have been given Powers of Attorney. The Office of the Public Guardian also supervises Deputies appointed by the Court of Protection, making sure they carry out their work in line with the principles of the Mental Capacity Act and will investigate reports of abuse or poor management against registered Deputies. It can recommend actions when there are concerns expressed about a Deputy, but only the Court of protection can decide what action to take and enforce any measures.