Court of Protection & Powers of Attorney

Ideally, we encourage people to get their affairs in order before they become incapacitated but, where this has not been possible, we can resolve the issues that people face once they are unable to manage on their own.

What is the Court of Protection?

The Court of Protection makes decisions on welfare or financial issues for people who are unable to make the decisions at the time they have to be made because they ‘lack mental capacity’.

The Court of Protection’s responsibilities include:

• Ascertaining whether a person has the mental capacity to make a decision for themselves.
• Appointing people as “deputies” to make decisions on behalf of the people who lack mental capacity.
• Giving permission for people to make one off decisions on behalf of a person who lacks mental capacity.
• Making decisions on both lasting power of attorney or enduring power of attorney, this includes considering objections to their registration

Our court of protection solicitors advise on:

• appointing a deputy through the Court of Protection
• professional deputy services
• welfare deputyship
• Court of Protection health and welfare disputes 
• making and using a Lasting Power of Attorney
• registering an Enduring Power of Attorney 
• statutory wills and trusts 
• personal injury trusts, including those for children 
• Court of Protection disputes

Appointing a Court of Protection deputy

A Deputy is often required to manage a vulnerable person’s property and affairs when that person has lost capacity and there is no valid Power of Attorney in place.  Since the vulnerable person is no longer able to appoint someone of their choice, the Court of Protection will appoint someone known as a Deputy to manage that person’s affairs. If you are considering making an application to the Court of Protection to be appointed as Deputy and there is friction among family members, or if you wish to object to an application for a deputyship order, it is advisable to seek legal advice.

Professional deputy services

The Court of Protection has a panel of professional deputies.  These deputies have experience in managing financial affairs and dealing with a vulnerable person’s assets such as their bank accounts, stocks and shares and property.  If the Court of Protection forms the view that it is in the vulnerable person’s best interests to have a professional deputy manage their affairs, then such a Deputy will be appointed and the extent of their authority and responsibility will be set out in the Order. Professional deputies charge for their services and are supervised by the Office of the Public Guardian.  It is worth noting that professional deputies are preferred in cases where there is ongoing friction among various family members, where there is a real conflict of interest and in cases where the vulnerable person has been awarded a substantial compensation for personal injury or clinical negligence.

Welfare deputyship

When a vulnerable person loses capacity and cannot make decisions at the time that they need to be made, another person can apply to step in and become their deputy. The role of a deputy is to make decisions on the vulnerable person’s behalf which is authorised by the Court of Protection. A health and welfare deputy would usually make decisions regarding medical treatment and how the vulnerable person is cared for. However, the Court of Protection is not keen on appointing health and welfare deputies since carers or family members making day to day decisions for the vulnerable person are often protected under section 5 of the Mental Capacity Act 2005.  As a result, health and welfare deputies are not very common and they are only appointed by the Court of Protection in the most difficult cases.  If there is a disagreement regarding the vulnerable person’s health and welfare, an application should be made to the Court of Protection. 

Court of Protection health and welfare disputes

When a Court of Protection dispute arises in relation to a vulnerable person’s health and welfare, the Court of Protection has jurisdiction to get involved and resolve them. These disputes can be over where a vulnerable person is going to live or what course of medical treatment they will receive. In these circumstances the local authority, the NHS Trust or any other person involved in the vulnerable person’s care may approach the Court of Protection and ask them to make the significant decision. In some cases, the Court’s permission will be required before a formal application is made.  The Court of Protection will assess whether the vulnerable person lacks mental capacity and if they do, whether a course of action proposed by the parties is in the vulnerable person’s best interests.

Power of Attorney

In simple terms a power of attorney is a legally binding document that allows you to nominate people to make decisions on your behalf if you feel you no longer have the capacity to do so yourself.

Our Power of Attorney specialists are able to advise you on

• making and using a Lasting Power of Attorney
• registering an Enduring Power of Attorney
• General Power of Attorney 

Power of Attorney refund scheme

From 1st February 2018, all those eligible can apply for a partial refund on their Power of Attorney fees of up to £54. Refunds are available to people who paid to register a Power of Attorney between 1st April 2013 and 31st March 2017.

To apply to claim your refund online or by telephone, please see the details on the Gov.uk website.

Our team

Established since 1846 we are well placed to protect vulnerable members of society, giving you peace of mind that your family member's financial and legal affairs will be protected.

We understand this can be a sensitive and sometimes stressful time for you so we treat the situation with sensitivity, meeting with you in the comfort of your own home, with relatives or a care facility. Our Court of Protection specialists are happy to liaise with your relatives, friends or healthcare professionals to make the process as easy as possible.