A Guide to the Court of Protection


A Guide to the Court of Protection

Many people will have heard of the Court of Protection, but unless you have needed to use it, the odds are that your knowledge will be fairly limited.

However, the specialist Court plays a significant role in supporting vulnerable people and their loved ones, and it is worth knowing what its function is and how it works should you ever need to fall back on its services.

Applying to the Court of Protection is quite a complex process that requires specialist legal advice and can take time to arrange. At Bookers & Bolton, we have extensive experience in helping people make applications to the Court of Protection and will be able to guide you through the process in its entirety.

In this blog, our friendly Court of Protection team answers some of the most frequently asked questions about the Court.

What is the Court of Protection?

The Court of Protection is a judicial body that makes decisions on property and financial affairs, and/or health and welfare matters, for people who lack the mental capacity to make those decisions for themselves.

A person may lack capacity for several reasons, including if a person has a physical or mental illness, Alzheimer’s or dementia, a learning disability, a stroke, or has suffered a brain injury following an accident. 

If the Court of Protection decides that a person lacks mental capacity, it can appoint someone to make decisions on their behalf (known as a ‘Deputy’).

The Court of Protection was created under the Mental Capacity Act 2005 and is part of the Family Division of the High Court.

Is the Court of Protection the same as the Office of the Public Guardian (OPG)?

The Court of Protection and Office of the Public Guardian (OPG) both help protect people who lack capacity. The Court of Protection makes decisions, and the OPG supports those decisions by providing guidance and administrative support.

What does the Court of Protection do?

The Court of Protection is responsible for:

  • Deciding whether someone has the mental capacity to make a particular decision for themselves.
  • Appointing Deputies to make ongoing decisions for people who lack mental capacity.
  • Giving people permission to make one-off decisions for someone who lacks mental capacity.
  • Handling urgent or emergency applications where a decision must be made on behalf of someone else quickly.
  • Making decisions about a Lasting Power of Attorney or Enduring Power of Attorney and considering any objections to their registration.
  • Considering applications to make statutory Wills or gifts.
  • Making decisions about when someone can be deprived of their liberty under the Mental Capacity Act.

Who can apply to the Court of Protection?

Anyone concerned about the ability of another person to make decisions for themselves can apply to the Court of Protection.

There are two types of deputyships you can apply for, and applications can be made for one type or both:

  • A property and financial affairs deputyship, which involves making decisions like paying your loved one’s mortgage and bills, dealing with their pension or other income, managing their bank accounts and making decisions involving their home.
  • A personal welfare deputyship, which involves making decisions over your loved one’s medical treatment, personal care and day-to-day routine.

How do you make an application to the Court of Protection?

There are various application forms that you need to complete depending on the nature of your application and what Order you are applying for.

You can find all the relevant forms on the Government website by clicking here: https://www.gov.uk/government/collections/court-of-protection-forms.

You need to pay an application fee of £371 to start Court proceedings or to make an application for permission to start proceedings.

Once all the relevant information and evidence have been provided and the application has been processed, the Court will then issue an Order appointing a Deputy who can then start making decisions on behalf of the person lacking capacity.

The process usually takes around four to six months, although the Court can process applications more urgently when required.

Who can be a Deputy?

Any adult over the age of 18 can be appointed as a Deputy.

Deputies must meet several conditions, such as not having a criminal record or not having been declared bankrupt. You can have professional Deputies, such as solicitors or a trust corporation, and non-professional Deputies (also known as ‘Lay Deputies’), who are usually a relative of the person who lacks capacity.

Two or more people can be appointed to act as joint Deputies to act on someone’s behalf.

Can a Deputy be Changed?

If you are concerned that a Deputy is not making decisions that are in the vulnerable person’s best interests, you can apply to the Court of Protection for a Deputy to be discharged and replaced.

How long does a Deputyship Order last?

A Deputyship Order lasts for as long as the individual concerned lacks capacity and needs someone to make decisions on their behalf. This will usually be for the lifetime of the person lacking capacity.

Court of Protection and Deputyship Solicitors

At Bookers & Bolton, we can help if you are considering applying to be appointed as a Deputy, advising you on the application process and supporting you in the various obligations of that role. The Court of Protection process can often be stressful, lengthy and daunting. Our specialist lawyers are on hand to provide the advice and guidance you need.

We can also act as a professional Deputy if, for example, no one else is suitable or family members do not wish to take on this responsibility.

Our specialist private client team can advise on a wide range of Court of Protection matters, including disputes such as objecting to the appointment of a particular Deputy, capacity disputes, and challenging gifts.

Get in Touch

If you would like more information or advice regarding our Court of Protection and Deputyship services, please get in touch with us on 01420 82881, email us at  enquiries@bookersandbolton.co.uk or make an online enquiry here

We can also help you with WillsProbateLasting Powers of AttorneyFamily LawConveyancing and Business Law Services.