Court of Protection
Serious Injury Law’s Court of Protection team is greatly experienced in looking after people who are often amongst the most vulnerable in the country.
After suffering a serious injury, many people are no longer in a position to look after their own affairs and finances. Injuries such as brain injury, or conditions including cerebral palsy, may limit mental capacity and function to the extent that life-long help is required.
If someone you care for is in this position, our Court of Protection services will help you. Led by Managing Partner and professional deputy of the Court of Protection, Tim Walters, our team provides clients with a very close, personable yet professional service that always has your best interests at heart.
Our team manages client finances so that they have steady and continuous income, and we help with any aspects of their affairs as and when necessary. This may include property management, support worker employment, investments, tax planning, and more.
We take pride in helping clients to live as comfortably as possible after injury, and to provide them with long-term security.
To enquire about our Court of Protection services, contact us today.
“I have known Tim for many years and have the pleasure of working alongside him regularly for a number of our mutual clients. From my experience Tim immediately establishes a strong, empathetic rapport with his clients which indicates his unique ability to endear himself to individuals with his mild but uncompromisingly professional attitude no matter what their age or background, which is in itself a rare skill. However this does not detract from his strong analytical approach and understanding of the issues and challenges faced when fulfilling the role as a deputy for the Court of Protection. Tim has a warm and pleasant demeanour underpinned by a steely determination to always do the right thing for his clients.Mark Holt, Independent Financial Adviser and Managing Director, Frenkel Topping Ltd
What is the Court of Protection?
The Court of Protection is a specialist court, dedicated to making decisions on financial or welfare matters for people who cannot make decisions at the time they need to be made (they ‘lack mental capacity’).
Its purpose is to protect vulnerable people by helping them with important issues such as their finances, property, health and welfare.
The main ways that the Court of Protection can provide help are:
- It can assess whether or not a person has the capability to make his or her own decisions.
- The Court can make decisions on behalf of an incapacitated person.
- It can appoint another person, known as a deputy, to have the responsibility of looking after the incapacitated person’s personal affairs.
- By making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration.
- By considering applications to make statutory wills or gifts on behalf of a person who lacks mental capacity.
- In making decisions about when someone can be deprived of their liberty under the Mental Capacity Act.
Who needs a deputy?
Those who require assistance from an appointed deputy are described as “people who lack capacity to make decisions for themselves” (Mental Capacity Act 2005).
It is important to make clear that this is not an umbrella term that only takes into account people who are unable to make any decisions at all. For example, it is quite possible for a person to be able to make small decisions about everyday issues such as what to wear or what to eat, but at the same time they may lack the capacity to make decisions about more complex issues such as long-term financial planning.
Another example of where someone may need a deputy would be if he or she has an illness or condition that improves over time. Initially, a deputy could make decisions but as the person’s capacity improves, the deputy’s powers would then reduce. Rather than an illness or condition, it could be that a person is unconscious following an accident, meaning their capacity may return at a later point in time.
Every person, accident and injury is different. Whilst one person with a head injury may always lack the capacity to make certain types of decisions, it does not mean that all people who suffer from a similar injury will be in the same position. In fact, others may learn new skills and become able to make decisions for themselves again.
Who can be a deputy?
Anyone over the age of 18 can apply to become a deputy. Most commonly, this is a friend or relative of the incapacitated person. The person wishing to be appointed must be able to meet the Court’s requirements – having financial issues and criminal convictions, for example, may mean that the Court will refuse to appoint a person.
Only the Court of Protection can appoint someone as a deputy. It is important that the Court makes this decision, because in some cases it may be neither appropriate nor suitable for, say, a friend or relative to be appointed. For example, it may be clear to the Court of Protection that that the friend or relative may not have the individual’s best interests at heart.
In other cases, a friend or relative may not have the time or capability to take on the role of deputy. Dealing with the Court of Protection can be a long process, and some of the decisions that the deputy may be required to make can be extremely complicated.
Alternatively, it could be that the deputy may be required to make important decisions that involve large sums of money and may feel somewhat overwhelmed and lacking in confidence due to the risk involved in making investments. For some people, especially those with no prior experience of the Court of Protection, this may prove difficult.
There are two possible solutions:
- The Court of Protection can appoint a ‘professional deputy’, who will usually be a lawyer.
- An appointed deputy can seek assistance from an experienced Court of Protection lawyer who can provide sound knowledge, guidance and advice.
If you are in this situation, Serious Injury Law has a dedicated Court of Protection Team that can help you.
The role and authority of a deputy
The role of a deputy is an extremely important one, as it means taking on the responsibilities of another person.
This section describes a deputy’s general obligations, whilst the next section looks at the orders made by the Court of Protection that will set out the extent of the deputy’s authority.
At all times, a competent deputy appointed to be a deputy for another person (‘the protected party’), amongst other things:
- Should not make a decision on behalf of the protected party if they believe the protected party can make the decision themselves.
- Should not make a decision on behalf of the protected party if the outcome would go against a Court of Protection order.
- Should always seek the views and wishes of the protected party before making a decision (where capacity and circumstances permit).
- Should not inform others that there is a deputyship order in place.
- Should not explain to others their role as a deputy or extent of authority.
- Will always keep under review the extent of the authority ordered by the Court of Protection, and seek less authority to match the protected party’s best interests.
- Will always keep under review the capacity of the protected party. If the protected party shows sufficient capacity, then the deputy must inform the Court of Protection.
- Cannot make large gifts out of the protected party’s money unless ordered to do so by the Court of Protection, nor hold any money or property in their own name on the protected party’s behalf.
- Cannot make a will for the protected party’s money unless ordered to do so by the Court of Protection, or change the protected party’s existing will.
What is a Court of Protection order?
Once a deputy has been appointed to help a protected party who lacks mental capacity, the Court of Protection issues an order to them that states their exact powers, authority and responsibilities.
The order will:
- State that the deputy must apply the principles set out in section 1 of the Mental Capacity Act 2005 (as described below) and act in line with its Code of Practice.
- Detail the extent and limit of the deputy’s powers and responsibilities.
- Specify that the deputy’s decisions are made in the protected party’s best interests.
- Require the deputy to report to the Court / Office of the Public Guardian each year.
- Ensure that the deputy puts in place a bond of insurance to safeguard the protected party at all times.
- State that the deputy must seek independent advice before making any investments.
In addition, the Court of Protection may allow the deputy to do some of the following:
- To purchase land and property on behalf of the protected party.
- Allow land and property to be sold with specific authority from the Court.
- Attend to the financial needs of the same people that the protected party would – for example their immediate family.
- Advise that the deputy is allowed to ‘make gifts’ on behalf of the protected party, such as for birthdays and anniversaries, or perhaps charitable donations.
What is the Office of the Public Guardian?
Deputyships are overseen by the Court of Protection and an executive agency sponsored by the Ministry of Justice called the Office of the Public Guardian (‘OPG’). Each year most deputies must report to the OPG with details of all financial transactions and major decisions made on behalf of the protected party. This is a very important process, because to prove that all deputies are acting in the best interests, the OPG needs to know the following information:
- What decisions have been made on behalf of a protected party.
- The reasons for making the decisions.
- Details of all the people consulted before making the decisions.
- Any other factors in the process of the decision-making, for example any conflicts of opinion with consultants or even with the protected party themselves.
The principles of the Mental Capacity Act 2005
All people should apply the following five core principles of the Mental Capacity Act 2005 when undertaking their deputyship:
- A person must be assumed to have capacity unless it is established that he lacks capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
- A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
- An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
Our Court of Protection and Professional Trustee team
Serious Injury Law’s dedicated Court of Protection team is led by our Managing Partner, Tim Walters.
Tim is appointed as a professional deputy of the Court of Protection, and he and the team are responsible for looking after the affairs of many vulnerable people who have suffered reduced mental capacity after serious injury. Tim is also often appointed as a professional trustee to help people who have capacity but still require assistance. The team is responsible for the investment of their clients’ finances, specifically so that it may produce continuous income, aiming to provide security for the remainder of their clients’ lives.
Our clients also benefit from the day-to-day help that our Court of Protection team provides. For example, some clients may need our assistance with employing support workers and experts, others may need our help managing their bank accounts and making payments, and most benefit from our team’s continuous property management.
At Serious Injury Law, our Court of Protection team provides a trusted service that is dedicated to acting in our clients’ best interests.
For any Court of Protection assistance and to request our services, please contact us.