The Role of the Court of Protection

The Court of Protection (‘CoP’) is a specialist court in England and Wales which protects the interests of vulnerable people who don’t have the mental capacity to make their own decisions about things such as finances, compensation, health and welfare. The Court of Protection makes these important decisions on behalf of ‘protected people’, such as people who’ve suffered from serious head or brain injuries.

This means their role includes:

• Deciding whether the protected person has mental capacity to make their own decisions
• Appointing Deputies
• Giving people permission to make one-off decisions on behalf of a protected person
• Making decisions on applications to make statutory wills or gifts
• Making decisions as to when someone can be deprived of their liberty under the Mental Capacity Act 2005

Mental capacity is the ability to make sound decisions about normal everyday life, and important life-changing decisions – while understanding the implications of that decision at the time. The Mental Capacity Act 2005 says a person lacks capacity if they’re unable to make a decision for themselves “because of an impairment of, or a disturbance in the functioning of, the mind or brain”.

Put simply – if they don’t understand the information or can’t use it to come to a decision – or they can’t communicate their decision – then that person lacks capacity.

There are a lot of reasons why someone might lack capacity: old age and dementia, cerebral palsy, extensive learning difficulties, serious illness – and personal injuries such as a brain injury.

Unfortunately, serious injuries can sometimes cause people to lose their mental capacity, especially if the head or brain were injured.

In these cases, the Court of Protection might appoint someone as a ‘Deputy’ to make decisions on their behalf during legal proceedings or following a compensation pay out.

Although it’s possible for the Court of Protection to make one-off decisions on behalf of the person, this can become time consuming if ongoing decisions will need to be made for them because you have to apply to the Court of Protection every time. To avoid the back and forth, they’ll appoint a Deputy.

A Deputy is someone formally appointed by the Court of Protection – they’ll then legally be allowed to make the decisions on the protected person’s behalf. This means that in a compensation claim, they’ll become the point of contact for the personal injury solicitor. Usually, a close relative of the patient will apply to the Court of Protection to be made their Deputy, such as the spouse/partner or parent.

A professional person can also be appointed: a solicitor, or even a team of solicitors, might apply to be the Deputy for a protected person (if they have no close relatives available, for example).

When a deputy is appointed, the Court of Protection will set out what they are and aren’t allowed to act on in relation to the protected person. This is called the ‘Deputyship Order’. The deputy manages the person’s property and financial affairs and/or health and welfare (depending on the specific case) in accordance with the Order and the Mental Capacity Act.

Areas covered by a property and financial deputyship order include:

• Making financial decisions
• Selling, buying or adapting property
• Claiming benefits, paying bills, ensuring that the protected person’s financial needs are being met
• Providing for dependents

Typical matters covered by health and welfare deputyship order include:

• Where the person lives and who they live with
• Their daily care and dietary needs
• Consenting to medical and dental treatment for the protected person
• Care arrangements, and leisure activities

If a Deputy wants to make a decision about an issue that’s outside the deputyship order, another application will need to be made to the Court of Protection.

The Deputy also has an ongoing duty to decide whether the protected person has mental capacity to make decisions each time they arise. They’re only allowed to make decisions on the person’s behalf if they find that they still lack mental capacity.

If you have a loved one who doesn’t have the mental capacity to manage their finances because of their injuries, and hasn’t made a will before their accident happened (or their existing will is out of date), then the Court of Protection can make a will on their behalf. This is known as a ‘statutory will’.

You’ll likely need to get a doctor’s opinion as to whether they lack the capacity to make the will on their own.

Any decisions made about what to include in the Statutory Will should be in the protected person’s best interests. To check this, a draft of the proposed Statutory Will should be given to the Court of Protection for them to check and approve.