What Is the Court of Protection?

The Court of Protection exists to make decisions on behalf of individuals who lack the mental capacity to make decisions about their own welfare or finances. The Court can also determine whether someone lacks capacity and, if so, appoint a trusted person—known as a Deputy—to manage their affairs.

Understanding Mental Capacity

Mental capacity means having the ability to make decisions for yourself. A person is considered to lack capacity if, due to illness, injury, mental health issues, or a learning disability, they are unable to make specific decisions when needed.

To have capacity, a person must be able to:

• Understand the information relevant to the decision, including any foreseeable consequences;
• Retain that information long enough to make the decision;
• Weigh up the information to reach a decision;
• Communicate their decision by any means, such as speech, sign language, or even simple movements like blinking.

It is important to remember that everyone should be presumed to have capacity unless it is clearly established otherwise.

The Legal Framework

The Mental Capacity Act 2005 sets out the legal framework for making decisions on behalf of those who lack capacity. This includes guidance for Attorneys and Deputies. 

The Mental Capacity Act Code of Practice provides practical advice for anyone making decisions under the Act and is available at www.gov.uk/government/publications/mental-capacity-act-code-of-practice.

Attorney vs. Deputy: What’s the Difference?

• Attorney: Appointed by an individual while they still have capacity, through a Lasting Power of Attorney (LPA).
• Deputy: Appointed by the Court of Protection after a person has lost capacity and can no longer make decisions for themselves.

Both Attorneys and Deputies are responsible for acting in the best interests of the person they represent.

Duties of a Court-Appointed Deputy

If you are appointed as a Deputy, the Court will specify the extent of your authority. As a Deputy, you must:

• Only make decisions that are authorised by the Court order;
• Always act in the best interests of the individual;
• Follow the guidance in the Mental Capacity Act Code of Practice and statutory principles;
• Submit an annual accounting report to the Office of the Public Guardian;
• Maintain appropriate insurance;
• Keep the individual’s property and finances separate from your own.

If you need advice or support regarding the Court of Protection, mental capacity, or the role of a Deputy, please contact our team for clear and compassionate guidance.