Court of Protection Applications: A Complete Guide

When planning your financial affairs, it is often advisable to have a Property and Finance Lasting Power of Attorney (LPA) in place so that should you need, a trusted person can help you make decisions and to manage your finances. One requirement when making an application for the LPA is that the donor has mental capacity to do so. When capacity is lost, the ability to make a Lasting Power of Attorney is also lost.

In situations such as this, the Court of Protection will need to be involved to appoint deputies should they be needed. In this article we will explore when a deputyship may be needed and what steps are to put this in place.

When an adult in England or Wales loses the mental capacity to manage their finances and has not already put arrangements in place, families often find themselves facing an unfamiliar and stressful legal process. Mental capacity refers to the ability to understand, retain, and consider relevant information to make a decision.

In cases like this, an application is made to the Court of Protection. This is a specialist Court, established under the Mental Capacity Act 2005 and considers cases to protect vulnerable people while their financial affairs, such the ability to pay bills and manage bank accounts can continue smoothly. 

If the Court accepts the application, it appoints a Deputy. This is the person who then has the legal authority to make decisions on behalf of the person who lacks capacity. This is usually a spouse or adult children, but it can be another relative or even a professionally appointed deputy such as a solicitor. The Deputy has a responsibility to act in the best interest of the person who has lost capacity.

While the position of a Deputy may be similar to the responsibilities of an attorney under a Property and Finance LPA, the application process to become a Deputy is different. Medical evidence must be obtained confirming that the person lacks mental capacity. Forms must be completed setting out the person’s circumstances, their financial situation, and the reasons a deputy is needed. 

The key difference between an LPA and a Court of Protection application is when it is needed and the control a person has over it. With an LPA, the individual chooses who will manage their affairs. With a court application, the decision of who will manage this is made after capacity has been lost. The court then determines who should act.

LPAs are generally quicker and less costly to use because there is less ongoing supervision. Court-appointed deputies must file annual reports and operate under stricter oversight. For this reason, solicitors and advisers often encourage people to create LPAs early, while they are still able to do so.

Despite it being a good idea to have LPAs in place, life does not always allow for such advance planning. Emergencies can happen and can leave someone without capacity which can cause emotional strain for family members. A solicitor experienced in Court of Protection matters can guide families through each step.

A solicitor can draft the application for you, gathering medical evidence, arranging for capacity assessments to take place, submit the paperwork to the courts and deal with any objections or complications arising from the application.

A Court of Protection application for property and financial affairs is ultimately about safeguarding people at a vulnerable time. While the process requires care and patience, it allows essential financial decisions to be made and continue to be made. 

If you are in a position where a loved one has lost capacity, it may be advisable to obtain some initial advice about whether a Court of Protection application is necessary. Alternatively, you may wish to appoint attorneys for your property and financial affairs so that a later application to the Court of Protection is not necessary.

With the right legal support, families can navigate the system with confidence, knowing that their loved one’s finances are protected and managed in their best interests. Our Private Client team would be happy to discuss any concerns you may have about a loved one’s capacity and what the appropriate next steps would be. They can be contacted at 01457 761 320 or via email.