The Court of Protection is a court created under the Mental Capacity Act 2005. It has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves.
The Court decides whether someone has the mental capacity to make decisions for themselves. If an application is made and the Court decides the person lacks capacity then they will issue an Order appointing a family member or, if there is no family, a close friend as a ‘Deputy’. If there are no family members or close friends, in some circumstances local authorities or solicitors are appointed.
The Court will often appoint Property and Affairs deputies - but this can take 21 weeks or longer for the application to be considered and the Order issued.
Health & Welfare Deputies are rarely appointed. Firstly, permission has to be sought from the Court to make the application. If permission is refused then the application cannot go ahead.
If you have a Lasting Power of Attorney in place, there is no need to involve the Court of Protection. However, many people do not make a Lasting Power of Attorney whilst they have mental capacity because they think, “what if I do this and the documents are never needed?” The reality is that if you lose mental capacity in the future and there is no Lasting Power of Attorney in place (ie an ‘Attorney’ has been appointed to act for you), the only alternative for families is to apply to the Court of Protection to be appointed as a Deputy to act on your behalf in relation to your property and affairs or health and welfare.
Not having an Attorney appointed to act on someone’s behalf can cause the family added stress at a time when they are coming to terms with parents not having mental capacity and possibly needing residential care.