The Court of Protection plays a crucial role in safeguarding adults in England and Wales who lack the mental capacity to make certain decisions for themselves. Created under the Mental Capacity Act 2005, the modern Court of Protection formally came into operation in October 2007, replacing its previous functions within the High Court.
Today, the Court makes legal decisions on financial matters, personal welfare, and medical treatment, and can appoint trusted individuals, known as deputies, to act and make decisions on behalf of someone who is unable to do so themselves.
Below, AFG Law answers the most frequently asked questions about the Court, appointing deputies, how to apply to the court, and when you may need the help of Court of Protection solicitors.
Frequently Asked Questions
1. What is the Court of Protection?
The Court of Protection is a specialist court responsible for making decisions for adults in England and Wales who lack the mental capacity to make their own choices. It handles a broad range of matters relating to financial affairs, health and welfare, and disputes about capacity itself.
The Court also oversees the work of deputies, ensures decisions are made in the person’s best interests, and works closely with the Office of the Public Guardian (OPG), which supervises appointed deputies.
2. What does “mental capacity” mean?
Under the Mental Capacity Act 2005, a person is considered to lack capacity if they are unable to:
- Understand the information needed to make a decision
- Retain that information
- Weigh up the information to make a choice
- Communicate their decision
Mental capacity can be temporary or permanent. Conditions such as dementia, learning disabilities, brain injuries or illness can affect a person’s ability to decide about medical treatment, paying bills, or managing day-to-day matters.
3. What decisions can the Court of Protection make?
The Court may:
- Decide whether a person has mental capacity
- Make decisions on behalf of someone who lacks capacity
- Approve or reject serious medical treatment decisions
- Resolve disputes about personal welfare or living arrangements
- Decide issues relating to financial affairs
- Authorise the deprivation of liberty in certain circumstances
- Appoint deputies to manage ongoing matters
- Handle concerns about existing attorneys or deputies
4. What are deputies and when are they appointed?
If someone permanently lacks capacity and ongoing decisions are required, the Court may appoint one or more deputies to make decisions on their behalf. This is known as appointing deputies.
Deputies are usually close family members, but a professional (such as a solicitor) can also act when appropriate.
5. What are the types of deputies?
There are two main types of deputies:
1. Property and Financial Affairs Deputies
These deputies manage tasks such as:
- Paying bills
- Managing bank accounts
- Handling benefits
- Making investment decisions
- Managing property
2. Personal Welfare Deputies
Less common, these deputies make decisions about:
- Care arrangements
- Daily routines
- Health and welfare matters
- Medical treatment (in limited circumstances)
The Court will only appoint a personal welfare deputy where ongoing decision-making is needed and cannot be resolved in another way.
6. How do you apply to the Court of Protection to become a deputy?
To apply to the court, you must submit official forms, detailed financial information, medical evidence of the individual’s capacity, and a declaration confirming your suitability.
Because applications can be complex, many people choose to instruct specialist Court of Protection solicitors to prepare the paperwork, deal with the Court, and guide them through the process.
Once appointed, deputies are supervised by the Office of the Public Guardian, which requires yearly reports explaining decisions made and how money has been managed.
7. How does the Court of Protection differ from a Power of Attorney?
A deputyship is only needed when someone has already lost capacity.
By contrast, a Lasting Power of Attorney (LPA) is created while a person still has capacity and allows them to appoint someone they trust to make decisions in the future.
Some people may still have an Enduring Power of Attorney (EPA), which covered financial decisions before LPAs were introduced. EPAs are still valid if made before October 2007, but they must be registered with the OPG if the person begins to lose capacity.
If no LPA or EPA exists, families typically need to apply to the Court of Protection.
8. What happens if there is a dispute about medical treatment or personal welfare?
The Court can step in when families, health professionals, or local authorities disagree about matters such as:
- Serious or life-changing medical treatment
- Whether someone should move into a care home
- Contact with family members
- Care arrangements
The Court’s priority is always the person’s best interests, balancing their rights, wishes and feelings.
9. What is “Court of Protection work”?
This term refers to all legal activity relating to the Court, including:
- Assessing capacity
- Preparing and submitting applications
- Representing relatives in hearings
- Advising on deputyship duties
- Managing complex estates
- Challenging decisions
- Dealing with safeguarding issues or concerns raised by the public guardian
Specialist solicitors often undertake Court of Protection work to ensure compliance with the Mental Capacity Act and to support families through the process.
10. Do I need Court of Protection solicitors?
While individuals can apply independently, many people benefit from legal support because:
- The forms are complex
- Medical evidence is required
- Financial assessments must be accurate
- Deputies have ongoing legal responsibilities
- Disputes can arise between family members or professionals
Experienced Court of Protection solicitors help avoid delays, ensure compliance, and make the process far less stressful.
Speak to Our Court of Protection Team
Whether you need help applying to the Court, guidance on appointing deputies, or support with complex decisions about personal welfare or financial affairs, our specialist team is here to help.
We provide clear, compassionate advice for families going through the challenges of mental capacity and deputyship in England and Wales.
For specialist legal advice and support, contact our Court of Protection Solicitors by email at privateclients@afglaw.co.uk. You may also contact us today via phone on 01204 920106. One of our experts will be happy to book in an appointment to discuss your Court of Protection requirements.