What is a Court of Protection Order?

Author:
Grace Serwanga
Partner, Private Client Solicitor
Date:
24/07/2019

If a family member or close friend loses ability to make decisions for themselves, perhaps because of dementia, a serious illness or a brain injury, the Court of Protection may be required to intervene.

The Court of Protection can make decisions on the financial or welfare matters relating to people who are no longer able to make decisions for themselves.  The Court of Protection’s intervention is usually required because the individual has no Lasting Power of Attorney in place or agreement can’t be reached about what’s in their best interests.

The Court of Protection can make various Orders in the best interests of a person who lacks mental capacity to make decisions for themselves. These can be declarations about whether or not one lacks the capacity to deal with a specific matter, one-off decisions on a specific matter or Orders appointing a Deputy to make decisions on behalf the incapacitated person.

For free initial legal advice get in touch with our Court of Protection Solicitors.

Call us on 08002605010 or request a callback and we will help you.

Court of Protection Deputy Orders

There are two kinds of Deputy Order that the Court of Protection can make:

  • Property and Financial Affairs Deputyship Orders: These authorise someone to manage or take charge of an incapacitated persons financial affairs from mundane matters like paying the vulnerable person’s bills for them, as well as managing their pension, to more complex matters like buying, selling and adapting properties; investing large sums of money and regularly reviewing the health of portfolios and arranging care packages.  The more complex financial arrangements are common where clients have large sums of money to manage following a successful personal injury claim.
  • Personal Welfare Deputyship Orders: These authorise someone to make key decisions relating to health and welfare matters ranging from discussing treatment with clinicians and making decisions regarding whether or not to continue with life sustaining treatment to make decisions about where the incapacitated person should live.

The Court of Protection tends to deal with finance and property applications in a different way from health and welfare matters. In relation to property affairs, if a person lacks the mental capacity to manage his/her financial affairs, it will generally approve of applications to appoint a Deputy to make decisions the incapacitated person can’t make. 

However, the Court of Protection is a lot more reluctant to appoint a Personal Welfare Deputy. With welfare matters, when a person is found to lack capacity to make a decision for themselves, and there is a dispute between family, friends and public bodies like the Local Authorities or NHS Trust on what’s best for someone, the Court of Protection will usually make a one-off Order dealing with the specific matters at hand.

An order that allows one person to make all decisions on a specific issue is a serious order with far-reaching consequences. The law prefers the Court of Protection to make one-off decisions on specific matters rather than to appoint a Deputy to make the decisions. However, with most property affairs, there will be a series of ongoing decisions to be made.

How Do I Apply?

To become someone's Deputy, you must first check that you meet the legal criteria set out in the Mental Capacity Act 2005, and the relevant guidance. Our Court of Protection Solicitors can advise you on your eligibility and chances of success; filling out the appropriate forms, obtaining the relevant assessments, and dealing with the Court application from start to finish.  This includes dealing with matters that become contested.

The process and the forms/assessments can be difficult to understand, and, if they aren’t completed correctly, it can cause delay and/or a rejection of your application. It's recommended that you consult a Court of Protection Solicitor before proceeding, even if you then decide to make the application independently. Our Court of Protection Solicitors can advise you and walk you through the whole process, ensuring that any forms and assessments are accurately completed in advance and that you’re fully aware of what it entails.

For free legal advice call our Court of Protection Solicitors

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