When someone loses the ability to make important decisions about their finances, property or personal welfare, questions can arise about who has the legal authority to act for them.
The Court of Protection exists to safeguard the interests of people who lack the mental capacity to make particular decisions themselves. It can authorise decisions, appoint people to manage someone’s affairs and resolve disagreements about what is in that person’s best interests.
For family members, understanding the Court’s role is particularly important when a loved one develops dementia, suffers a serious brain injury or becomes unable to manage their own affairs.
AFG Law’s Private Client team provides legal advice on Court of Protection applications, deputyship and the responsibilities involved in making decisions for someone who lacks capacity.
What does the Court of Protection do?
The Court of Protection is a specialist court in England and Wales established by the Mental Capacity Act 2005. Its primary role is to make decisions about the property, finances and personal welfare of people who cannot make particular decisions themselves.
The Court has powers to deal with financial or welfare matters, including:
- Deciding whether someone has the mental capacity to make a particular decision.
- Making decisions about managing money, property and other assets.
- Appointing deputies to manage someone’s affairs.
- Authorising certain decisions about care, accommodation and medical treatment.
- Resolving disagreements about a person’s best interests.
- Considering challenges involving attorneys or deputies.
The Court provides an important legal safeguard for vulnerable people, ensuring that decisions are made lawfully and with proper consideration of their individual circumstances.
Who does the Court of Protection help?
The Court of Protection makes decisions for people aged 16 and over who lack the capacity to make the relevant decisions themselves. This may include people living with dementia, individuals who have sustained brain injuries or those with learning disabilities or mental health conditions that affect their decision-making ability.
However, having a particular diagnosis does not automatically mean someone lacks mental capacity.
Capacity is assessed in relation to the specific decision that needs to be made and at the time it needs to be made. Someone may be capable of making everyday decisions but unable to understand a complex financial transaction.
Under the Mental Capacity Act 2005, people must also be supported to make their own decisions wherever reasonably possible.
What is a Court of Protection deputy?
One of the Court’s most common functions is appointing someone to act for a person who lacks capacity. A deputy is an individual authorised by the Court to make certain decisions on behalf of another person.
The Court most commonly appoints property and financial affairs deputies. Their responsibilities can include managing bank accounts, paying bills, dealing with benefits and overseeing property. A deputy may be a spouse, adult child, another relative or a professional such as a solicitor.
The Court can also appoint deputies to make decisions about personal welfare, although these appointments are less common. Welfare deputies are generally appointed where ongoing decisions cannot appropriately be dealt with through other arrangements.
Deputies must act in the person’s best interests, comply with their Court order and remain within the authority granted to them.
When is a Court of Protection application needed?
An application to the Court of Protection is often necessary when someone has lost capacity to manage their finances and has not appointed an attorney. For example, a parent may develop advanced dementia and become unable to access their savings, pay bills or make decisions about selling their home.
Although relatives may be willing to help, they do not automatically acquire legal authority to manage another person’s finances. Where no appropriate legal arrangement exists, an application for deputyship may be required.
The Court can also consider applications involving specific property transactions, disagreements about care or other welfare matters.
How does the Court of Protection differ from a Power of Attorney?
A Lasting Power of Attorney (LPA) allows someone to choose who should make decisions for them if they become unable to do so. A person must have the necessary mental capacity when creating an LPA. Once that capacity has been lost, family members cannot simply arrange a new LPA on their behalf.
This is one of the main circumstances in which Court of Protection involvement becomes necessary.
An Enduring Power of Attorney may also remain valid if it was created before 1 October 2007. Existing EPAs can still be used, subject to the applicable rules, but new ones can no longer be made.
Where a valid and appropriate power of attorney (LPA) or EPA already exists, deputyship may not be necessary. However, some decisions still require specific Court approval.
Can the Court of Protection make decisions about care?
Yes. The Court can consider disputes about where someone should live, the care they receive and certain medical treatment decisions. It can also authorise arrangements involving people who are deprived of their liberty, where the relevant legal requirements are met.
These cases can involve complex questions about a person’s rights, safety, wishes and best interests.
The Court does not automatically take over every decision concerning someone who lacks capacity. Many everyday decisions can be made by those providing care under the Mental Capacity Act without a court order. Court involvement is generally required where a particular legal authorisation is necessary or a significant disagreement cannot otherwise be resolved.
Can you make an urgent Court of Protection application?
Some situations cannot wait for an ordinary application to be processed. The Court can consider emergency applications where an urgent decision is required, such as a serious issue concerning someone’s welfare or an immediate financial matter.
However, the applicant must explain why the situation is urgent and why the Court’s intervention is necessary. Not every pressing family or financial problem will justify an emergency application.
How can AFG Law help?
Court of Protection matters can be difficult for families, particularly when decisions must be made during a period of illness or uncertainty.
AFG Law’s Private Client team can advise on whether a Court of Protection application is necessary, assist with deputyship applications and explain the responsibilities involved in acting as a deputy.
We can also advise where specific financial or property decisions require additional authority.
If you need advice about the Court of Protection, deputyship or making decisions for someone who lacks mental capacity, contact AFG Law’s Private Client team to discuss your circumstances.