Court Of Protection
The Court of Protection is an institution based in London which was created in its current form in 2007 to make decisions on behalf of those who lack the mental capacity to do so for themselves. The Court of Protection derives its powers from the Mental Capacity Act 2005 and represents those who are vulnerable and incapacitated.
It works closely with the Office of the Public Guardian (OPG), which has a supervisory role for those who are associated with the Court of Protection (such as Attorneys and Deputies). The OPG has the power to supervise and investigate the actions of Attorneys and Deputies and is involved in bringing cases to Court for the removal of Deputies and Attorneys who have not carried out their role appropriately.
The vulnerable and incapacitated person that an application is brought in relation to is known throughout the proceedings as “P”.
Common Applications which are brought before the Court of Protection include:
Deputyship / Deputy Order
This is an application made on behalf of someone who lacks mental capacity to manage their affairs and who does not have a valid Power of Attorney in existence. The application is for the Court to appoint a person or persons to make these decisions for P on an ongoing basis.
For those who have lost the ability to make a valid Will, an application exists for a person to apply to the Court for a Will to be created or amended on behalf of the person who lacks capacity (“P”). Lots of evidence is required for this application and there must be a good reason for the suggested Will to go ahead. Usually, the Court of Protection will appoint the Official Solicitor (known as the “OS”) to represent and act as an impartial professional for P in relation to the application.
Many are unaware that Attorneys and Deputies are not permitted under their authority to freely gift any assets belonging to P. In fact, the powers relating to gifting are fairly limited and if in doubt, an application to the Court should be made for permission to make the gift in question.
This is an application solely to appoint an additional Trustee to act on behalf of the incapacitated person. It is required most commonly in situations where there is co-ownership of land or property before such land or property can be dealt with.
Applications by existing Attorney / Deputy
The Court of Protection also deals with any number and variety of applications by existing Attorneys and Deputies, such as permission to sell or buy property, permission to deal with an estate for a deceased relative of P or to pursue legal action in a personal injury claim or to recover assets lost through financial abuse.
You may also be interested in our pages Professional Attorneyship and Deputyship Management and Acting as an Attorney or Deputy.