By Jane Stanfield, Associate Practitioner
Please note that this article relates to Deputyship and the Court of Protection in England and Wales.
For Guardianship in Scotland see What is a guardianship order and for Controllership in Northern Ireland see How to apply to become a Controller
The Court of Protection
If someone loses mental capacity to appoint an Attorney before they have made a Lasting Power of Attorney (LPA) then it will not be possible for friends or family to use an LPA to manage that person’s financial affairs or to make decisions about their health and welfare. It is however possible to apply to the Court of Protection for a Deputyship Order or another order or one-off decision.
The Court of Protection makes decisions on financial and personal welfare matters for people who lack the mental capacity to make those decisions themselves. The Court rules on disputes about LPAs, mental capacity assessments, deprivation of liberties and best interest decisions. It can make decisions for people who lack capacity to do so and where there is no LPA in place, and sometimes appoints Deputies.
Deputies are appointed by the Court of Protection to make decisions for someone who lacks the capacity to do so in a similar way to an Attorney under an LPA. The Court can appoint more than one person as a Deputy. There are two types of Deputy:
- Property and financial affairs Deputy
- Personal welfare Deputy
Personal welfare Deputies are not always appointed; Deputyship gives a long-term ability to support someone and this may not be necessary. As an alternative to appointing a Deputy the Court can make a one-off decision about the issue in question.
Fees for Court of Protection applications are higher than LPA fees and for Deputyship there is an annual supervision fee as well. These fees can be reduced if the person without mental capacity has a low income and savings.