The Court of Protection and Deputyship Orders

Losing mental capacity can happen to any of us through illness, injury or conditions like dementia. When this leads to someone becoming unable to make decisions for themselves, who is responsible for stepping in to protect their welfare and manage their finances? In England and Wales, the Court of Protection has legal powers to appoint a ‘deputy’ to take over decisions if necessary.

Read on our guide on how the Court of Protection and deputyship orders work.

What is the Court of Protection?

The Court of Protection is a specialist court that oversees safeguarding for adults in England and Wales who lack mental capacity to make their own choices about personal health, care or financial matters.

It has authority under the Mental Capacity Act 2005 to make major decisions on behalf of people considered to have impaired mental capacity, usually due to dementia, brain injuries, strokes or severe learning disabilities.

The Court of Protection has several key responsibilities:

• It decides whether individuals have capacity to make certain decisions for themselves.
• It can empower people to legally act as deputies or appointees to make decisions in the best interests of those lacking capacity if required.
• It can deprive a person who lacks capacity of their liberty if essential for their safety and wellbeing.
• It can authorise medical treatment for people unable to consent for themselves.
• It oversees deputies and appointees appointed to manage the affairs of those without capacity.

What is a Deputyship Order?

If the Court of Protection decides an individual is unable to make certain decisions about their personal welfare, property & financial affairs or healthcare, it can appoint a deputy to make those decisions for them. This is known as a deputyship order.

A deputyship order gives the appointed deputy clear legal authority to make binding decisions in the best interests of the person lacking capacity. Two different types of deputies can be appointed:

Health and Welfare Deputy

A health and welfare deputy can be appointed to make ongoing decisions about areas like:

• Healthcare needs
• Daily routine and diet
• Who the person has contact with
• Where the person lives
• Personal relationships

Property and Financial Affairs Deputy

A property and financial affairs deputy can be appointed to make ongoing decisions about areas like:

• Collecting income and benefits
• Paying bills and expenses
• Budgeting and spending
• Selling or buying property
• Managing investments
• Paying care home fees

The Court of Protection selects deputies after careful consideration of the circumstances and needs of the individual lacking capacity. The deputy has a legal duty to always act in the person’s best interests.

Applying to Become a Deputy

If you need to manage the affairs of a family member or friend lacking capacity, you can apply to the Court of Protection to become their deputy. The steps usually involve:

• Consulting medical opinions to evidence the person’s lack of capacity.
• Making a formal application to the Courts
• Undergoing background checks to satisfy the Court you are trustworthy.
• Submitting plans for how you will act responsibly as deputy if appointed.
• Attending hearings if the Court requests further evidence or information.
• Securing a security bond if handling large assets.

If the Court is satisfied you are suitable and deputyship is in the individual’s interests, they will issue a deputyship order defining your powers and responsibilities.

You must then follow guidance from the Court of Protection and submit regular reports detailing the decisions you make as deputy. The order remains in place unless circumstances change or the Court discharges you from the role.

How We Can Help

The team at MWQ Estate Planning has extensive experience supporting families to obtain Court of Protection deputyship orders when needed. We can provide specialist advice and practical assistance with:

• Assessing when someone may lack mental capacity to trigger an application.
• Gathering medical evidence from professionals about their lack of capacity.
• Helping complete Court of Protection application forms.
• Preparing the required background documents and care plans.
• Liaising with the Court during the appointment process.
• Ensuring documentation meets requirements.
• Helping you carry out ongoing deputy reporting duties.

Losing mental capacity can be devastating, but robust deputyship safeguards welfare. With guidance from our senior advisors, we can support you through Court of Protection applications for the most positive outcome.