Court of Protection

Guardian Solicitors’ Q&A 

Do you want to know how the Court of Protection protect your relatives and friends if and when they are unable to make decisions for themselves? Guardian Solicitors’ Q&A below answers key questions about the court’s specific responsibilities, how it meets them, and how it affects you and others who have Lasting Powers of Attorney.

What is the Court of Protection?
A specialist court in London for all issues relating to people who lack capacity to make specific decisions.

What is the Public Guardian?
Under the Mental Health Act 2005, this person (supported by the Office of the Public Guardian) is responsible for (a) supervising court-appointed deputies; (b) keeping registers of deputies, Lasting powers of attorney (LPA) and Enduring powers of attorney (EPA); and (c) investigating complaints about deputies and attorneys acting under a registered LPA or EPA.

Why do I need to make an application to the Court of Protection?
If a person has not made a lasting power of attorney and they lose their capacity to make decisions, an application has to be made to the court.

What is a 'deputy'?
The Court of Protection will appoint and then guide a deputy in making decisions in the best interests of those who lack capacity.

Who can be appointed a deputy?
Anyone aged 18 or over, such as a family member or a friend; a professional;
 or spouse, partner or civil partner.

Can I have more than one deputy?
The court will generally appoint one person to the role. Although the court will consider applications for more than one, it rarely does so.

How do you tell if someone lacks mental capacity?
How far a deputy can go to determine a person’s capacity will depend on the individual circumstances of the case as well as other factors, such as the urgency of making the decision.

What is the Mental Capacity Act 2005?
It empowers people to make decisions for themselves as far as possible. It protects vulnerable people who may not be capable of making all of their own decisions for reasons including dementia, learning difficulties, mental health problems, stroke or head injuries.

"The Act stipulates how people can plan ahead to the time when they may lack capacity"

The Act sets out who can make decisions in which situations and the principles they must follow when doing so. It also stipulates how people can plan ahead to the time when they may lack capacity.

The Act lays out five statutory principles that provide a benchmark for decision-makers and careers:

  • A person must be assumed to have capacity unless it is established that he or she lacks it.
  • A person is not to be treated as unable to make a decision unless all practicable steps to help the individual to do so have failed.
  • A person is not to be treated as unable to make a decision 
merely because he or she makes an unwise decision.
  • Under this Act, an act done or decision made for or on behalf of a person who lacks capacity must be done, or made, in their best interests.
  • This approach should only be followed after considering any other approach less restrictive of the person’s rights and freedom of action, which could achieve the same purpose as effectively.

Does the court request medical evidence to determine someone’s mental capacity?
Yes, as part of the application process, it will ask for a medical report, usually from a GP or consultant.

Are there safeguards to stop anyone making applying to be appointed a deputy?
Yes. As part of the application process, the proposed deputy must provide the court with details of the person(s) who are to be served and notified of the application. These persons will then be informed that an application is being made to the court. Failure to comply with the service and notification procedures will result in a failed application.

What are my powers, duties, and responsibilities as a deputy?
The deputy order you receive on appointment sets out your specific powers in relation to the person who lacks capacity. They will depend on that person’s needs and ultimately the court’s decision.

"The decisions you make can have a major impact on the person who lacks capacity"

What decisions can I make as a deputy?
The decisions you make can have a major impact on the person who lacks capacity. You should carry out your responsibilities sensitively, responsibly and rigorously, and always:

  • make decisions in the person’s best interests
  • make only those decisions authorised by the court order
  • have regard to all relevant guidance in the Act’s code of practice
  • adhere to the Act’s five statutory principles
  • apply a high standard of care when making decisions

Are there limits on my powers as a deputy?
Yes, several. In particular, deputies have no authority to make a decision or take action if:

  • they believe the person has capacity to make that particular decision themselves
  • the decision is to physically restrain the person, unless it is necessary to prevent them coming to harm and the restraint is reasonable and proportionate
  • they are acting against a decision made by an attorney acting under a lasting power of attorney granted by the person before they've lost capacity
  • the decision is to refuse the provision or continuation of life-sustaining treatment for a person who lacks capacity to consent. Only the court can make such a decision

How is a person who lacks capacity protected from abuse?
The Act introduces two new criminal offences: ill-treatment and willful neglect of a person who lacks capacity.

The offences can apply to anyone caring for someone who lacks capacity, including family; health, social care, hospital or care home staff; and attorneys or deputies.

A person is guilty of an offence if they ill-treat or willfully neglect the person they care for or represent. Penalties range from a fine to a prison sentence of up to five years, or both.