What is the Court of Protection and how can it affect me?24/10/2017
The Court of Protection issues a variety of orders including the most common Deputyship Orders, and Statutory Wills. These types of Orders are arguably the most important legal instruments required for a dementia patient or anyone diagnosed with a mental incapability seeking access to legal services, as these Orders provide their representative the authority to make important legal decisions on their behalf.
A representative can be anyone who is a close family member, friend, solicitor, member of the social care team. The representative will apply to the Court of Protection to make an order to allow them to be deputy.
When is an Order from the Court of Protection required?
This will be required in cases where a Lasting Power of Attorney has not been put in place before capacity was lost, and the legal decision needs to be made on behalf of someone. A Deputyship Order is most commonly used to deal with someone’s finances such as gaining access to their bank accounts in order to pay for care fees or requiring the authority to sell someone’s property on their behalf.
A Deputyship Order can be used in welfare decisions if granted however the Court of Protection are generally reluctant to appoint welfare deputies. The Mental Capacity Act states that ‘the powers conferred on the welfare deputy should be as limited in scope and duration as is reasonably practical in the circumstances’. The Court of Protection therefore usually only appoints One of the sessions with regards to welfare orders
What is the process for applying for a Deputyship Order?
Firstly, the representative must show that they would not be directly benefiting from taking over the finances of someone else. The proposed deputy is required to fill out a number of forms detailing the person’s finances to whom the application relates. They arere required to also detail their own financial circumstances and history as well as providing a witness statement as to why the Deputyship Order is required. Alongside this, a capacity assessment report is required from a medical practitioner who is able to state that the person to whom the application relates is unable to make decisions on their own.
The Court of Protection sets variable timescales in which they allow people who have been notified of the order to respond with an objection. Eventually, the court protection will issue an order setting out the terms under which the deputy may act on behalf of the person and will set out any restrictions.
This whole procedure can take months to complete before an Order is finally granted.
This can be extremely problematic for the person to whom the application relates who may have suffered due to the length of time it has taken for an Order to be granted and the subsequent costs which have been incurred.
What if a Lasting Power of Attorney is in place?
The good news is, if there is a Lasting Power of Attorney in place from the time before the applicant lost mental capacity then this can be used in all situations regarding most legal decisions. However, the time at which the Power of Attorney was made will depend on whether the scope for Health and Welfare decisions are covered.
The lasting power of attorney for Health and Welfare only came in to place in October 2007 (following the Mental Capacity Act 2005 coming into force). Before this time it was only possible to make an enduring power-of-attorney, which only covered provisions for financial decisions. Once registered, an EPA therefore only allows a representative to deal with someone’s property and financial decisions.
If a Health and Welfare Power of Attorney was not made (on or after October 2007) it is likely that there will be nothing in place appointing someone to make health decisions on behalf of someone who loses mental capacity. This is when a court order from the court of protection may be required for health decisions, however, as discussed above the courts are reluctant to appoint welfare deputies and the issuing of an Order can be costly and often unsuccessful.
It is therefore crucial to ensure you make a Lasting Power of Attorney to ensure that someone is appointed to make decision on your behalf should you lose the capacity to be able to do so in the future. However, if there ever is a time when a Court of Protection order is required then it is a good idea to seek the advice of a legal professional who can help navigate the web of forms and requirements needed to meet the specifications of a successful application.
For further advice, please contact Louise Miller, Head of Wills and Probate at Mincoffs Solicitors on 0191 281 6151 or email firstname.lastname@example.org
[i] Alzheimer’s Society (2014), Dementia UK 2014