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An interview with Court of Protection Expert, Jennie Kingham

06 February 2019

What is the Court of Protection and who does it help?

The Court of Protection is a specialist Court that makes decisions relating to financial or welfare matters for people who lack mental capacity to make the decision themselves.

What is the Office of the Public Guardian?

The Office of the Public Guardian is the administrative arm of the Court of Protection. It is a government department that supervises Deputies and Attorneys to ensure they carry out their work in accordance with the Mental Capacity Act 2005. They take action/investigate where there are concerns about the conduct of an Attorney or Deputy.

In addition, they deal with the registration of Lasting Powers of Attorney and Enduring Powers of Attorney and maintain the public register.

What does a Court of Protection Solicitor do and when should you speak to one?

A Court of Protection Lawyer advises on a range of matters that affect those who lack mental capacity. For example, they can assist with applications to the Court for the appointment of a Deputy in either a financial or welfare context. They can assist with disputes over social care, residence or medical treatment.

You should speak to a Court of Protection Lawyer if there is uncertainty about someone’s ability to make decisions for him/herself.

What is a Deputy?

A Deputy manages the affairs of a person who lacks mental capacity i.e. they are unable to make a decision for themselves. There are two types of Deputy; a Property and Financial Affairs Deputy would be responsible for managing the financial affairs of the incapable person eg. paying bills or selling property. The other is a Personal Welfare Deputy who would make decisions about such things as medical treatment and care arrangements.

What Decisions are made in the Court of Protection?

The Court of Protection can make a one-off decision on a specific matter on behalf of an incapable person or appoint a Deputy to make ongoing decisions on behalf of that person. 

Examples of the types of decisions the Court make include:

  • Removing an Attorney or Deputy.
  • Whether a Lasting Power of Attorney or Enduring Power of Attorney is valid or clarify points of contention within the documents.
  • Whether an action to be taken on an incapable person’s behalf is appropriate and in their best interests.
  • Whether someone has the required mental capacity to make a particular decision for themselves.
  • Making decisions about Lasting Powers of Attorney or Enduring Powers of Attorney such as considering objections to their registration.
  • Considering applications for statutory wills and gifts.
  • Making decisions about when someone can be deprived of their liberty under the Mental Capacity Act 2005.
  • Decisions relating to health care and medical treatment on behalf of an incapable person.

What is the process of making a Lasting Power of Attorney?

There are two types of Lasting Powers of Attorney – Property and Financial Affairs and Health and Welfare. A specific form will need to be completed for each Power of Attorney. The form will include the Donor’s details (the person to whom the Lasting Power of Attorney relates), details of the Attorneys to be appointed and how they are to act, and details of any persons to be notified on application for registration.

All parties must sign the relevant documents. The Attorney/Attorneys must sign to confirm that they understand their duties and obligations. A Certificate Provider is also required to sign; this is someone independent who knows the Donor well or a professional person such as a doctor or social worker. The Certificate Provider must sign the form to confirm that they have discussed the contents of the Lasting Power of Attorney with the Donor on their own (if possible) and that in their opinion the Donor understands the purposes and scope of the document. They must be satisfied there is no undue pressure or that fraud is involved. 

Both types of Lasting Power of Attorney must be registered before they can be used by the Attorneys and in the case of the Health & Welfare Lasting Power of Attorney, the Attorneys can only act if the Donor lacks mental capacity.  The documents are registered with the Office of the Public Guardian.

At Ellisons, Jennie Kingham and the Court of Protection team has a breadth of experience which enables us to assist you when a family member or close friend can sadly no longer make decisions themselves. Contact any one of our specialist team on 01473 556900 or enquiries@ellisonssolicitors.com