Court of Protection

The Court of Protection is there to make decisions on behalf of those who lack mental capacity in relation to their welfare and finances. They are also able to decide if an individual lacks mental capacity and appoint someone to look after the individuals affairs, this is known as a deputy.

What is Mental Capacity

Mental capacity means that you have the ability (capacity) to make decisions for yourself. When you are unable to do this, then you are said to lack mental capacity. This can occur due to illness, injury, mental health problems or a learning disability.

For someone to have capacity they must be able to:

Understand the relevant information for the decision they are wanting to make, including any reasonably foreseeable consequences of making the decision.
Retain this information long enough for the decision to be made.
Balance the information provided to make the decision.
Effectivley communicate their decision by any means - this can be via speech, sign language, muscle movements i.e., blinking.

It is important that a person must be assumed to have capacity unless it is established that they lack it.

The Law

The Mental Capacity Act 2005 provides the legal framework for those (including Attorneys and Deputies) who are making decisions on behalf of those who lack the capacity to do so for themselves.

The MCA Code of Practice provides the practical guidance for decisions made under the Mental
Capacity Act 2005 and is available on www.gov.uk/government/publications/mental-capacity-actcode-of-practice

Difference between Attorney and Deputy

Attorneys and deputies are appointed to be able to make decisions on behalf of another when theyare unable to make the decisions for themselves.

The key difference between an Attorney and Deputy is, an Attorney is chosen by the individual whilst they still have capacity via their Lasting Power of Attorney (LPA), whereas a Deputy is appointed by the Court of Protection for someone who has already lost capacity.