Court of Protection Solicitors

The Court of Protection was created by the Mental Capacity Act 2005 (MCA) to help people who do not have the mental capacity to make their own decisions about things like their financial affairs, health, welfare, and medical treatment.

It has wide powers to assess a person’s mental capacity, make decisions on behalf of people lacking mental capacity, and authorise their loved ones to make decisions on their behalf.

Under the MCA, everyone is presumed to have mental capacity and can make their own decisions, for example, about where to live, their day-to-day activities, and how to manage their own finances.

A person lacks mental capacity where they become unable to make their own decisions when they need to be made. Common reasons for a lack of mental capacity include a brain injury, an illness such as dementia, severe learning difficulties, or mental health problems.

Before establishing that someone lacks mental capacity, they should be helped to make the decision (for example, by finding alternative ways to communicate).

The MCA sets out a strict two-stage test to assess whether a person lacks mental capacity:

The person must have an impairment of the mind or brain. This could be an illness, injury, or be caused by external factors such as alcohol or drug use

The impairment must mean the person cannot make a decision when it needs to be made. This is important because while someone may be able to make certain decisions (such as what to buy at the local shop) they may be unable to make others (such as whether to take out a bank loan)

A person cannot make a decision where they cannot:

- Understand information needed to make a decision

- Retain or process that information

- Weigh up the information and consider the pros and cons

- Communicate their decision (even using alternative means such as sign language)

The Court of Protection can make a number of orders and decisions on behalf of people who lack mental capacity, including:

Mental capacity assessments

Deputyship Orders – to appoint one or more Deputies to make decisions on a person’s behalf

Statutory Wills – where a person lacks capacity (called “testamentary capacity”) to make their own Will, the Court can make a Statutory Will for them

Urgent decisions – where a Deputyship application is currently progressing but an immediate decision needs to be made

Emergency decisions – where a person’s welfare is at risk, for example, where they require immediate medical treatment but cannot consent due to a lack of mental capacity

One-off decisions – for example, where a Deputy needs to make a decision not covered by their Deputyship Order

Authorisation of the sale of jointly owned property – by appointing someone to act on behalf of the incapacitated owner

Deprivation of Liberty Orders – to authorise the restriction of someone’s activities and movements if it is in their best interests

The Court of Protection can also resolve disputes, including:

Objections to the registration of a Power of Attorney

Challenges to Deprivation of Liberty Orders

Deputyship disputes

It is possible to plan for potentially losing your mental capacity by leaving legal documents setting out your wishes and appointing loved ones to make decisions on your behalf if necessary. Such documents include:

Lasting Power of Attorney (LPA) – LPAs appoint 1 or more Attorneys to make decisions on a person’s health and welfare and/or their property or financial affairs

Enduring Power of Attorney (EDAs) – only EDAs made before 1 October 2007 can be used. These documents appoint 1 or more Attorneys to make decisions on a person’s financial affairs

Advance decision – also known as Living Wills, Advance Decisions are legal documents which set out a person’s wishes to refuse medical treatment (including life-saving treatment) in the event they cannot consent themselves when needed

Many people make one or more of these documents upon being diagnosed with an illness such as Alzheimer’s. However, you may wish to create a Power of Attorney or Advance Decision when you come to make a Will to ensure your best interests are protected and to save your loved ones the stress of having to apply to the Court of Protection.

Court of Protection applications can be fairly complicated requiring a number of different forms.

Typically, you will need to submit form COP1, the Court of Protection application form, which sets out the type of application you want to make, your details, and the details of the person the application relates to.

You will probably also need to submit an assessment of capacity form (COP3) which must be completed by you and a practitioner such as a medical professional, mental health professional, or psychiatrist.

There will likely be other forms to complete depending on the type of application you are making.

Our Court of Protection solicitors have extensive experience supporting clients through the application process, ensuring the relevant forms are completed correctly and avoiding any unnecessary delays.

A Deputy is someone authorised by the Court of Protection to make decisions on behalf of a person who lacks the mental capacity to decide for themselves when needed.

There are 2 types of Deputy:

1. Property and Financial Affairs Deputy – does things like manages a person’s bank accounts, organises their pension, and pays their bills

2. Personal Welfare Deputy – makes decisions about things like a person’s day to day activities, care, and medical treatment

You can either be one type of Deputy or both and if your application to become a Deputy is accepted, the scope of your powers will be set out by the Court in a legal document.

If you need to make a decision which is beyond the scope of your powers, you can apply to the Court for a one-off decision.

The forms you need to complete to become a Deputy include:

Court of Protection application form (COP1)

Assessment of capacity form (COP3)

Deputy’s declaration (COP4) – providing details of your personal financial circumstances, why you wish to be a Deputy, and undertaking to act according to your duties and responsibilities as a Deputy

Information form COP1A – to become a property and financial affairs Deputy

Information form COP1B – to become a personal welfare Deputy

You must also tell certain people you are making a Deputyship application, including the person the application relates to.

The Court can take around 2-3 months to process a Deputyship application. If there are any issues with the application or someone objects to your appointment, the process will take longer. However, we will always act swiftly to try and resolve any issues within a reasonable timeframe.

A Deputy can make decisions for someone when they’re unable to decide for themselves. The scope of your powers and responsibilities as a Deputy will be set out in the Order and there are also general rules under the MCA.

When making a decision for someone, you must:

- Ensure it is in their best interests

- Take into account the decisions the person has made in the past and their previous values, beliefs, and wishes

- Consult other people, such as relatives, close friends, and the person’s care team

- Try to help the person make the decision themselves as much as possible, for example, exploring other ways to communicate

You must not:

- End life-sustaining medical treatment

- Restrain the person, unless it’s for their own safety and in their best interests

- Make a Will or change their existing Will (without an application to the Court of Protection)

- Give gifts unless the Deputyship Order allows you to

- Hold money or property belonging to the person in your own name

Yes – you must submit a report every year to the Office of the Public Guardian (OPG) setting out the decisions you’ve made as a Deputy, including:

- Your reasons for making the decisions and why they were in the person’s best interests

- Who you consulted while considering the decisions

- The person’s finances (if you’re a property and financial affairs Deputy)

If the person you are a Deputy for is still unable to make their own decisions, you will need to reapply to the Court of Protection to continue making decisions for them. You can also nominate someone else to act as a Deputy (so long as they agree).

Because Deputyship applications take around 2-3 months, you should apply to the Court of Protection before the end of the current Deputyship Order to ensure you can continue acting for your loved one uninterrupted.

When a person lacks mental capacity, they may be unable to sign and execute important legal documents, such as a Will.

A person lacks the capacity to make a Will (called lacking testamentary capacity) where they do not understand:

- What making a Will means or what its effect will be

- How much money or property they own

- How the Will might affect anyone named as a Beneficiary, anyone left out of the Will, or anyone who would otherwise inherit under the Rules of Intestacy

If a person dies without making a Will, their estate is distributed according to the Rules of Intestacy which may be contrary to what their wishes would have been. As such, the Court of Protection can make a Statutory Will on someone’s behalf where they’ve lost their mental capacity and cannot make one themselves.

To make a Statutory Will, you must complete and submit several forms, including:

- Court of Protection application form COP1

- Assessment of capacity form COP3, including a medical report

- Witness statement COP24

- Information form COP1C​

You also need to inform certain people, including:

- Any Beneficiaries under an existing Will who would be affected (for example, if they were left out of the Statutory Will)

- Anyone who would inherit under the Rules of Intestacy

We will help you establish who needs to know about your application as well as drafting and sending the notices on your behalf.

If no one objects to the Statutory Will, the Court will decide whether to approve the application and could request further medical information or arrange a hearing if more evidence is required.

The Court of Protection can make urgent or emergency decisions in certain circumstances, for example where the incapacitated person’s welfare is at risk.

You can apply for an Urgent Interim Order where you are applying to be a Deputy but your appointment has not yet been approved and you need to make a one-off, time-sensitive decision. For example, you need to pay a person’s care fees.

You can apply for an Emergency Order where there is a risk to someone’s welfare. For example, they require immediate medical treatment but cannot consent due to a lack of mental capacity.

When a person lacks mental capacity, they’re often unable to sign important legal documents and, as such, cannot consent to the sale or transfer of property.

If you jointly own property with someone who lacks mental capacity, you can apply to the Court of Protection to appoint someone to act on behalf of your joint owner.

You will have to make an application even if you’ve already been appointed as a Deputy.