What is the Court of Protection?
The Court of Protection is the Court in England and Wales that has authority to determine issues relating to a person’s capacity. Where it is determined that a person lacks capacity to make a particular decision then the Court of Protection has jurisdiction to determine this decision on behalf of the incapacitated person and may make orders, including the appointment of a deputy.
How do I apply to the Court of Protection?
There is a formal application process for requesting that the Court considers any issue relating to mental capacity and this varies depending upon the particular issue that the Court is being asked to consider. At Price Slater Gawne we have experience with all types of applications to the Court of Protection and are happy to discuss your particular needs with you.
Who can act as a deputy?
Anybody over the age of 18 can potentially act as a Deputy. In relation to a Property and Finance deputy, the person appointed cannot previously have been declared Bankrupt. The Court will also need to consider the merits of any specific application and suitability of the Deputy in relation to the particular case. Certain people should be notified of an application, including the person to whom it relates, and they will then have opportunity to raise any objections to the proposed appointment.
Will my next of kin be appointed as Deputy?
No, your next of kin will not automatically be appointed as your deputy. It may be that your next of kin if the most appropriate person to apply to be appointed as deputy but this is dependent upon them making such an application and the Court will still need to weigh up all the relevant factors. Unfortunately it is a common misconception that a next of kin has decision making authority when someone lacks capacity.
Is it possible for more than one Deputy to be appointed?
Yes, the Court can appoint more than one person to act as a person’s deputy. This can either be on a joint and several basis where the deputies can make decisions both collectively and individually; or a joint appointment where the deputies must make decisions together and cannot act separately. The distinction is an important one to understand when making an application or considering the decision making authority of deputies.
What does it mean if I am appointed deputy?
If you are appointed as deputy then the court has given you authority to make decisions on behalf of a person who lacks capacity. The extent and range of your authority will be set out in the Court order and you must also comply with the principles provided by the Mental Capacity Act.
How long does it take to have a deputy appointed?
The application process for an uncontested deputy application can take up to 6 months although it is possible to expedite this in certain circumstances. Where there is a contested application then the process is likely to take longer and will depend upon the issues that are in dispute between the parties. Ultimately the Court will need to be satisfied that any decision it makes regarding the appointment of a deputy is in the best interests of the person who lacks capacity.
Can I change my appointed deputy?
Yes, the appointment of deputies is determined by the Court of Protection and the Court has the power to discharge or replace a deputy. There might be a number of different reasons why the Court considers that a change of deputy is in the person’s best interests, including cases where there has been a breakdown in the relationship with the deputy. This can extend to fractured relationships between the deputy and other people concerned with the incapacitated person’s affairs, such as family members or close friends.
We discuss changing professional deputy in more detail here
How do I change my appointed deputy?
An application to the Court of Protection is required in order to change deputy. We are happy to assist with these types of application and please contact us if you would like to discuss a potential application.
What is a statutory will?
If a person lacks capacity to make a will then it is not within the authority of a deputy to make a will on behalf of the person. Instead, an application to the Court of Protection will be required for the court to authorise a will on behalf of the incapacitated person. This is known as a Statutory Will and in most cases the Court will ask the Official Solicitor to consider the proposed will and provide independent representations to the Court.