Frequently Asked Questions about Court of Protection & Deputyship

What is mental capacity?

Mental capacity means being able to make your own decisions. A person may lack capacity due to mental illness, learning disability, acquired brain injury, substance misuse or dementia.

The test for mental capacity is set out in the Mental Capacity Act 2005. Under the Act, a person is presumed to have capacity unless proved otherwise.

The Act sets out a two stage test of capacity:

• Is there an impairment of disturbance in the functioning of the person’s mind or brain?
• If so, is the impairment such that the person lacks capacity to make a particular decision?

A person may have capacity to make some decisions but lack capacity to make others.

To have capacity the person must be able to do all of the following:

• Understand information given to them
• Retain that information.
• Weigh up the information available to make the decision.
• Communicate their decision.

What is the Court of Protection?

The Court of Protection assists people who lack mental capacity. The court makes decisions for them about their finances and their health and welfare.

This court was set up to safeguard vulnerable adults who lack mental capacity and also children who are likely to lack capacity when they reach the age of 18.

The court decides if a person lacks capacity, appoints deputies and deals with applications to approve certain expenditure such as a property purchase, make payments for care to a family member and set up a will for the incapacitated person.

The court deals with disputes that arise between family members and deputies. The court safeguards the interests of the incapacitated person and protects them from exploitation.

What is a deputy?

A deputy is appointed by the Court of Protection to act for a person who lacks mental capacity to manage their finances. The role of the deputy is similar to a trustee.

A deputy can be a family member or a professional. The court may appoint a sole deputy or two deputies to act together.

The deputy must always act in the incapacitated person’s best interests. They must take into account the person’s wishes and feelings, and beliefs and values. The deputy must always choose the option is gives the person the most freedom and autonomy.

The deputy has numerous financial duties:

• They must keep the deputyship funds separate from their own personal funds.
• They must keep proper records and accounts.
• They must keep the assets safe and insured.
• They must invest funds so as to achieve the best possible return.
• They must claim all benefits and money due.
• They must budget carefully to ensure that the money lasts for as long as it is needed.

The work of the deputy is supervised by the Office of the Public Guardian (OPG). The deputy has to file annual reports and accounts with the OPG.