The person who lacks capacity is known as the protected party or more generally, “P”. There are many reasons that P may lack capacity, however, the main examples of people who lack capacity are those who suffer with dementia, have suffered a brain injury or who suffer with mental health illnesses.
The Court of Protection must act in line with section 1 of the Mental Capacity Act 2005, therefore:
- A person must be assumed to have capacity unless it is established that they lack capacity;
- A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success;
- A person is not to be treated as unable to make a decision merely because they make an unwise decision;
- An act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests; and
- 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.
It is important to note that a person who lacks capacity will not necessarily lack capacity for the rest of their lives and the Court of Protection has limited powers where a person recovers capacity. Furthermore, the Court of Protection does not have jurisdiction when P dies. It may have jurisdiction to make orders in relation to a child where it considers that that child will not have capacity when they reach the age of eighteen.
Deputies: what are they and what can they do?
The Court of Protection has a variety of powers as provided for by section 16 of the Mental Capacity Act 2005. Broadly, it can:
- make decisions for P;
- make declarations as to whether P has capacity; and
- make declarations as to whether an act done in relation to P is or would be lawful.
Fundamentally however, it can appoint a Deputy for P. Deputies are responsible for making decisions on behalf of P and those decisions broadly fall into two categories. Firstly, they may make decisions in relation to P’s finances and property affairs and secondly, they may make decisions in relation to P’s health and welfare. It is imperative that a Deputy acts in P’s best interests at all times. In line with this principle, Deputies making decisions on behalf of P’s financial and property affairs must keep a record of all financial decisions made and they must file annual reports to the Office of the Public Guardian (“OPG”) in order that they can be held accountable for their actions.
To apply to become a Deputy, a person must submit an application form (COP1) to the Court of Protection alongside an assessment of capacity form (COP3) and a Deputy’s declaration (COP4). P and three persons who know P must then be told of the applicant’s intention to become P’s Deputy in order that these interested persons have an opportunity to contest the application. The Court of Protection will then either approve or reject the application or hold a hearing to gain further information to decide upon the application. Once appointed, a Deputy will receive a court order which outlines the scope of their powers in relation to P.
Given the responsibility held by a Deputy, it is unsurprising that disputes can arise as to who is best suited to be appointed in the first instance. Joseph Brophy, a specialist court of protection disputes solicitor in our team, recently considered one such dispute. Although it is common for the Court of Protection to approve the appointment of close relatives or friends of P, conflicts can arise should there be any disagreements as to who is most suitable for the role. Disputes can also arise if it is considered that a Deputy is acting contrary to P’s best interests. Where a dispute arises, and if agreement cannot be reached, the Court of Protection can appoint what is known as a Panel Deputy, often a solicitor.
A Panel Deputy is an independent professional Deputy appointed by the Court of Protection and approved by the OPG. An online search of the OPG website provides a list of approved Panel Deputies for locations across the UK. However, it is worth bearing in mind that due to their acting in a professional capacity, the appointment of a Panel Deputy is often costly, with the general rule being that the expense will be met by P’s estate.
As well as appointing Deputies, the Court of Protection has the power to remove deputies in the event of a dispute pursuant to section 16(8) of the Mental Capacity Act 2005. There are a number of reasons a Deputy may be removed. It may be that they are acting dishonestly, contrary to P’s best interests or are failing to submit the annual reports of P’s finances. Sometimes, a family member will not have considered how onerous a duty it is to be appointed Deputy and they may themselves request to be removed in order that a Panel Deputy with experience may be appointed in their place. The Court of Protection will not take this decision lightly however, and they will only remove a Deputy if they consider that it is in P’s best interests to do so.
Deputies v Attorneys: what is the difference?
The Court of Protection will not play a part in granting a power of attorney as it only has jurisdiction where P has already lost capacity. A power of attorney on the other hand is a means by which a person who has mental capacity appoints an ‘Attorney’ to act on their behalf, either for a period when they have mental capacity (ordinary power of attorney) or in anticipation of them losing mental capacity (lasting power of attorney). Therefore, a power of attorney is prospective, whereas appointment of a deputy is generally retrospective.
There are other key distinctions to be made between Deputies and Attorneys. Due to the fact that Attorneys are appointed by the person for whom they will act, they are not subject to supervision, whereas Deputies are subject to relatively strict supervision and are overseen by the OPG. A person may appoint multiple Attorneys to act on their behalf in accordance with their various needs and expertise, whereas P will generally have a single Deputy to manage their affairs. Furthermore, a power of attorney is more flexible than a deputyship in that a person may change or remove attorneys as they wish provided that they have mental capacity, whereas, in order to discharge a Deputy, the Court of Protection must grant an order to this effect.
Attorneys are arguably more reflective of a person’s wishes than a Deputy appointed by the Court of Protection given that the person for whom they are acting may choose the Attorney and can also set out the scope of their duties and responsibilities. Evidently, the role of the Court of Protection is a very important one as they are required to make key decisions and orders on behalf of the most vulnerable people in our society.
Blog written by Meg Edwards | Trainee Solicitor – Contested Wills, Trusts and Estates