The Court of Protection is a specialist Court which deals with issues regarding people who lack the mental capacity to make decisions for themselves. The Court is not just in one place - a Court of Protection hearing could be in the Royal Courts of Justice in London, or in a county court outside London. There are lots of different judges who are part of the Court of Protection.

A Deputy is someone appointed by the Court of Protection to make decisions for a person who lacks mental capacity to make those decisions themselves. This can relate to property and financial affairs, or in some cases, health and welfare.

There are two main types of deputies:

• Lay Deputy – a non-professional, usually a family member or close friend

• Professional Deputy – a qualified legal professional, such as a solicitor

While both types are referred to as "deputies", the key difference lies in who they are and how they carry out their responsibilities.

A Deputy is required to keep accurate and up to date records of all financial transactions they complete on behalf of the Protected Party. The Deputy is required to complete and submit a yearly report to the Office of the Public Guardian (OPG) setting out what money has come in and gone out of the individual's accounts and what financial decisions they have had to make over the year. The OPG’s role is to supervise Deputies and to ensure they are complying with their duties. To ensure a Deputy is acting in the Protected Party’s best interests, the OPG will often visit the Deputy to discuss and review the Deputyship.

The Court of Protection is used when someone lacks the ability to make their own informed decisions about their finances or welfare due to conditions such as dementia, a brain injury, or serious illness. If they haven’t appointed a solicitor through an Lasting Power of Attorney (LPA), an application must be made to the Court to appoint a Deputy to make decisions in the best interests of those who lack capacity.

Common types of applications include:

• Applying to make a gift on their behalf

• Making a statutory will

• Decisions related to their health or welfare

• Challenging the appointment of an attorney or deputy

• Bringing or defending legal claims

You can instruct one of our experienced Court of Protection solicitors to make an application on your behalf and provide any legal advice regarding your application.

The first stage of the process is to work out whether you need permission from the Court to make an application. Generally, you will not need permission to apply to the Court if the application relates to property and affairs; however, there are some cases involving the appointment and removal of trustees, and a small number of applications relating to wills and gifts, where you may need the Court’s permission.

You will need permission if the application relates to personal welfare.

A Court of Protection application, particularly for Deputyship, typically takes 4 to 6 months to be processed. However, it can vary from 3 to 9 months depending on the complexity of the case, whether objections are raised and if a hearing is required.

Under the Mental Capacity Act, the Court has the power to

• Make decisions about the personal welfare or property and affairs of people who lack the capacity to make such decisions themselves

• Make declarations about a person’s capacity to make a decision, if the matter of whether they can make a decision cannot be resolved informally

• Make decisions in relation to serious medical treatment cases, which relate to providing, withdrawing or withholding treatment to a person who lacks capacity

• Appoint a Deputy to make ongoing decisions on behalf of a person who lacks capacity, in relation to either the person’s personal welfare or property and affairs

• Make decisions about Lasting Powers of Attorney (LPAs) and Enduring Powers of Attorney (EPAs) including validity, registration and removal of Attorneys.

Yes, someone who has been subject to a Court of Protection order and have a Deputy appointed can regain control of their affairs, if they regain their mental capacity. To do so, a medical assessment would be required to confirm they have regained capacity. Then, they can apply to the Court of Protection to have their Deputy removed and regain authority to manage their own affairs.

When someone dies who is subject to a Court of Protection order, the order will no longer be in effect. This means the authority that their Deputy had over their affairs also ends.

The Deputy is then responsible for notifying the Office of the Public Guardian (OPG) and the Court of Protection of the death and must provide a death certificate. The Deputy will also need to transfer any assets they manage to the people managing the deceased's estate.

A Statutory Will is a Will made on behalf of someone who lacks the mental capacity to make their own Will, and it is approved by the Court of Protection. This is authorised under the Mental Capacity Act 2005 and ensures that their wishes regarding their estate are fulfilled if they are unable to make their own Will due to a lack of mental capacity.

The application is usually made by someone authorised to act on behalf of the person who lacks capacity, such as a Court of Protection Deputy or someone with a Power of Attorney.

The Court of Protection reviews the application and assesses whether a Statutory Will is necessary and what its provisions should be. The Court will consider the person's past and present wishes, beliefs, values and the needs of their family. They are legally binding and have the same effect as if the person who lacks capacity had made the will themselves.