The Court of Protection (COP) is a government body that was created by the Mental Health Act 2005. It has the authority to decide whether someone has mental capacity. If they do not, it can make orders to help them. This could be an order requiring a certain action to be taken on their behalf or an order appointing a deputy to make decisions for them.

If somebody lacks capacity, the Court of Protection has the power to:

• Appoint a deputy to deal with their property and finances
• Approve the sale of somebody’s property or appoint a replacement trustee for joint property
• Make decisions about health and welfare issues
• Appoint a deputy to make health and welfare decisions
• Make a ‘statutory Will’ setting out what will happen to the person’s estate after their death
• Approve lifetime gifts on behalf of the person
• Make decisions about whether the person can be deprived of their liberty under the Mental Capacity Act
• Deal with objections to the appointment of attorneys under Enduring and Lasting Powers of Attorney
• Remove attorneys appointed under an Enduring or Lasting Power of Attorney
• Deal with emergency applications where an order is needed as a matter of urgency

A deputy is a person appointed by the Court of Protection to make decisions on behalf of someone who lacks the mental capacity to make those decisions for themselves.

A deputy appointed by the Court of Protection to represent a patient must follow the code of practice set out in the Mental Capacity Act 2005 in all of their actions. The code of practice includes liberty protection safeguards.

There are five key principles that a deputy must be aware of and follow in all actions and decisions on behalf of the patient.

1. A presumption of capacity – the deputy must assume that the patient is able to make a decision unless it is proved otherwise
2. The patient must be supported to make their own decisions wherever possible – so the deputy must help the patient to try and make a decision and involve them in the decision even if they cannot make it themselves
3. The right to make an unwise decision – if they are able to make a decision themselves, they should be allowed to do so, even if this is an unwise decision
4. Acting in the patient’s best interests – every action taken by a deputy must be in the patient’s best interests
5. Taking the less restrictive option – the deputy must make the decision that least interferes with the patient’s rights and freedoms and also consider whether there is a need to intervene at all

The two types of deputyship are:

• A property and financial affairs deputy; and
• A health and welfare deputy

A property and affairs deputy has the authority to manage the patient’s financial matters, to include:

• Dealing with their bank account
• Paying their mortgage or rent
• Paying bills
• Insuring their home
• Receiving benefits on their behalf
• Managing their investments
• Paying for the patient’s day to day expenses

The deputy will have the authority outlined in the deputyship order, which may not extend to selling the patient’s home. If this needs to be done, it may be necessary to make a separate application for an order giving the deputy authority to do this.

It is less common for the Court of Protection to make a personal welfare deputyship order. It is only done in cases where the court needs to be sure that the decisions made will be in the patient’s best interests, for example, because different family members have different opinions over the care needed, or where a deputy is needed to deal with a specific issue such as arranging a move to a care home.

A personal welfare deputy can make decisions about where the person lives, the care they receive and some decisions about medical treatment. However, the court is reluctant to make overarching appointments for health and welfare matters and prefers to consider specific decisions instead.

Circumstances where a personal welfare deputyship order can be requested include where:

• The decision needed relates to treatment to which the patient cannot consent
• The decision is complex or difficult
• There is disagreement over the course of action to be taken
• The patient will need ongoing help with making personal health and welfare decisions

There are a number of restrictions preventing a deputy from taking certain actions, including:

• Restraining the patient, unless it is to prevent harm
• Stopping life-sustaining medical treatment
• Taking advantage of the patient, for example, by profiting from a decision made on their behalf
• Making a will on behalf of the patient or changing their will – statutory wills can only be made by Court of Protection order
• Giving gifts on behalf of the patient, unless ordered by the court
• Holding the patient’s money or property on their behalf in the deputy’s own name.

As well as ensuring that all decisions and actions are in the best interests of the patient, a deputy must:

• Keep the patient’s money and property separate from their own;
• Keep detailed records of all financial transactions; and
• Submit an annual deputy report to the Court of Protection

The deputyship order may specify that the deputy needs to manage a Court Funds Office account. This is an account where the Court of Protection will hold the patient’s money and the deputy will have the authority to deal with it on the patient’s behalf.

The deputyship order will set out exactly what you have the authority to do, as well as any restrictions. Under a property and financial affairs deputyship order, you will usually be able to manage the patient’s day to day finances and investments. The order may include some restrictions however and you need to make sure that you are familiar with these.

If you need to do something that is precluded by the order, you will need to make a separate application to the court for a decision on that single issue.

1. Notify the person to whom the application relates that you are applying to become their deputy. You must then complete the relevant form within 14 days.
2. Notify three other relatives or close contacts of the person to whom the application relates that you are applying to become their deputy. Ask them to complete and return the relevant form within 14 days.
3. Submit your application within three months of doing the above. The Court of Protection will then process your application. The application must be accompanied by an assessment to confirm that the person lacks capacity to manage their own affairs.
4. The court will decide whether you are appointed the deputy or not.
5. Once appointed as a deputy, there is an annual supervision fee to pay, and the deputy will have to submit annual accounts to the court. There is also an insurance bond to put in place.

It is open to you to make an application yourself to become a deputy. However, the process is relatively time-consuming and you do need to make sure that you provide all the paperwork that the court needs or your application is likely to be delayed or rejected.

We therefore recommend that you ask a specialist solicitor to deal with this on your behalf.

Yes. If the patient does not have a relative who has the time or the expertise to take on the role of deputy on their behalf, a professional Court of Protection deputy can be appointed. This is generally a solicitor with particular expertise in Court of Protection matters and with a high level of understanding and experience in working with the elderly and vulnerable. 

Timescales vary but it typically takes between six months and a year to be appointed as a deputy. You can ask the Court of Protection to process matters urgently if needed. This will be considered on a case by case basis.

The deputyship order will no longer be in effect and the deputy will no longer have any authority under it to deal with the patient’s assets. Their assets will form part of their estate and be dealt with by either their executors if they have a will or their next of kin if there is no will.

A Lasting Power of Attorney (LPA) has a similar effect to a deputyship order in that it appoints someone to act on behalf of an individual should that individual become unable to manage their own affairs.

Making an LPA is a simpler process but can only be done by someone who has the mental capacity to understand the implications of what they are signing. When making an LPA, the individual in question can choose who they would like to deal with their affairs should they lose capacity. They can choose one or more attorneys to represent them. If they wish, they can choose different attorneys for property and financial affairs to those chosen for health and welfare matters.

If someone already lacks mental capacity, they can’t make an LPA.

Yes. If you have mental capacity, a good way to plan for the unknowns in your future is to make a Lasting Power of Attorney.

By making a Lasting Power of Attorney, you appoint people to act on your behalf in making decisions should you later become unable to do so. This is faster and more cost-effective than having to have a deputyship order made, so it is recommended that everyone consider putting an LPA in place.

For more information, please visit our Lasting Power of Attorney page.