The Court of Protection, Deputy's and the Public Guardian

1. Introduction

The Court of Protection is a court that was established through Part 2 of the Mental Capacity Act 2005. Prior to the Act the Court of Protection existed as an office of the Supreme Court only.

The Court has jurisdiction to decide all matters relating to the Mental Capacity Act and to make decisions about what is in the Best Interests of a person who lacks capacity with regard to their;

  1. Personal welfare; and/or
  2. Property and Affairs.

2. General Powers of the Court

The Power to make declarations

The Court of Protection has the power to make declarations regarding;

  1. Whether a person has or lacks capacity to make a decision specified in the declaration;
  2. Whether a person has or lacks capacity to make decisions on such matters in general as specified in the declaration; and
  3. The lawfulness of any act done, or yet to be done, in relation to that person.

The power to make decisions

Following a declaration that the person lacks capacity to make a decision about the matter in hand, the Court has the power to;

  1. Make a decision (or decisions) on behalf of the person; or
  2. Appoint a Deputy to make decisions on behalf of the person.

When deciding to make a decision itself the Court must be satisfied that this is more preferable to appointing a Deputy and vice versa.

Decisions must relate to either;

  1. The person’s property and affairs; and/or
  2. The person’s personal welfare.

When making decisions the Court is subject to the same rules as any Decision Maker in that;

  1. The 5 statutory principles of the Act apply; and
  2. Any decisions must be in the Best Interests of the person.

The Court has the power to make decisions regardless of whether there has been a request for them to do so, as long as this is in the person’s Best Interests.

The Court has the power to amend any order it makes at any time if it feels that this is no longer in the person’s Best Interests.

The power to appoint a Deputy

Following a declaration that the person lacks capacity to make a decision about the matter in hand, the Court has the power to;

  1. Make a decision (or decisions) on behalf of the person; or
  2. Appoint a Deputy to make decisions on behalf of the person.

For further information about appointing a Deputy, and the role of a Deputy click here.

The power to authorise a detention that deprives a person of their liberty

The Court has the power to authorise a detention in a care home or hospital when making a decision about the person’s welfare if;

  1. It deems this in the person’s Best Interests; and
  2. In the case of a deprivation under DoLS, the person is eligible to be deprived of their liberty under Schedule 1A of the Mental Capacity Act.

Although the Court has the power to authorise detention it cannot authorise a Deprivation of Liberty under the Deprivation of Liberty Safeguards. If a DoLS authorisation is required the Court must either;

  1. Direct the supervisory body (Local Authority) to authorise a deprivation; or
  2. Direct the managing authority to request a standard authorisation.

The power to transfer proceedings relating to people under 18

The Court of Protection and the High Court both have powers to transfer proceedings relating to a person under 18 from one Court to the other when granted the authority to do so by the Lord Chief Justice.

3. Specific Powers of the Court

The power to amend or withdraw an authorised Deprivation of Liberty Safeguard (DoLS)

Under section 21A of the Mental Capacity Act the Court has powers to review any standard or urgent DoLS authorisation at any time that it deems it in the person’s Best Interests to do so.

The Court can question;

  1. In the case of standard authorisations, whether the person (known as the relevant person) meets the qualifying requirements;
  2. In the case of standard authorisations, the conditions upon which the authorisation was given;
  3. In all cases, the period of which the authorisation has been, or will be in force;
  4. In all cases, the purpose for which the authorisation was given; and
  5. In the case or urgent authorisations, whether the urgent authorisation should have been given at all.

Following a review of the authorisation that has been given the Court has powers to;

  1. Vary or terminate a standard or urgent authorisation;
  2. Direct (order) the Local Authority (the supervisory body) to vary or terminate a standard authorisation; or
  3. Direct the registered person of a care provider or hospital (the managing authority) to vary or terminate an urgent authorisation.

The power to revoke a Lasting Power of Attorney

Under section 22 of the Mental Capacity Act the Court has powers to review the validity of a registered Lasting Power of Attorney.

The Court has the power to determine specifically whether;

  1. The requirements for creating a Lasting Power of Attorney have been met; and
  2. The Lasting Power of Attorney remains valid.

The Court can revoke any Lasting Power of Attorney when it finds;

  1. The donee has behaved, or is behaving in a way that contravenes the authority given to them; or
  2. The donee has behaved, or is behaving in a way that is not in the person’s Best Interests; or
  3. The donee proposes to behave in a way that contravenes the authority given to them or would not be in the person’s Best Interests.

The Court can also revoke a Lasting Power of Attorney if it finds that;

  1. Undue pressure was placed on the person to create or register the Lasting Power of Attorney; or
  2. Fraud was used to induce the person to create or register the Lasting Power of Attorney.

If there is more than one donee of a Lasting Power of Attorney the Court can decide to revoke the authority of as many donees as it deem necessary.

The power to alter and monitor a Lasting Power of Attorney

If the Court deems it in the Best Interests of the person it may;

  1. Amend the nature or scope of any decision that the donee has been authorised to make;
  2. Give additional authority to the donee to make decisions outside of those in the Lasting Power of Attorney;
  3. Permit the donee to purchase gifts with the person’s financial resource outside of the gifts they are permitted to buy; and
  4. Authorise expenses or remuneration to the donee in carrying out their role.
If the Court deems it necessary it can direct (order) a donee to provide reports, accounts and other information regarding their role.

4. Decisions that can be made by the Court

Decisions made by the Court must relate to either;

  1. The person’s property and affairs; and/or
  2. The person’s personal welfare.

Property and Affairs

The Court has powers to make decisions (determinations) about matters such as;

  1. The control and management of the person’s property;
  2. The sale, exchange, gift or other disposition of the person’s property;
  3. The acquisition of property on the person’s behalf;
  4. The carrying on, on the person’s behalf of any business or trade;
  5. Decisions that will lead to the dissolving or a partnership to which the person is a member;
  6. The carrying on of any contract entered into by the person;
  7. The discharge of the person’s debts and any other obligations, including moral obligations;
  8. The settlement of any property , whether for the person’s benefit or the benefit of anyone else;
  9. The execution of a will for the person (when they are 18 or over);
  10. The exercise of any power invested in the person as a trustee or otherwise; and
  11. The conduct of legal proceedings in the person’s name, or on their behalf.

With the exception of making a will (which can only be done from the age of 18) the Court can make decisions relating to all of the above for a person from the time that they are 16, so long as the Court reasonably believes that the person will continue to lack capacity when they become 18.

Personal welfare

The Court has powers to make decisions (determinations) about matters such as;

  1. Deciding where the person is to live;
  2. Deciding what contact the person should have, if any, with specified persons;
  3. Making an order prohibiting a named person from having contact with the person;
  4. Giving or refusing consent to the carrying out or continuation of medical treatment; and
  5. Giving a direction to change arrangements for the provision of healthcare to the person.

5. Deputies

The power to appoint a Deputy

Following a declaration that the person lacks capacity to make a decision about the matter in hand, the Court has the power to;

  1. Make a decision (or decisions) on behalf of the person; or
  2. Appoint a Deputy to make decisions on behalf of the person.

The Court has the power to appointment a Deputy regardless of whether there has been a request for them to do so, as long as this is in the person’s Best Interests.

Appointing a Deputy

When deciding to appoint a Deputy the Court must be satisfied that this is more preferable to making a decision itself and vice versa.

The Court can only appoint a Deputy when;

  1. The Deputy is over 18 years of age; and
  2. The Deputy consents to the appointment.

If decisions relate to property and affairs the Deputy can also be a trust corporation.

When deciding to appoint a Deputy the Court must limit the scope and duration of the powers it gives to the Deputy to reflect the circumstances of the case.

Multiple Deputies

The Court has the power to appoint two or more Deputies if it deems this in the person’s Best Interests. Where there is more than one Deputy the Court must set out;

  1. Whether the Deputies must act jointly; or
  2. If they can act independently; and
  3. Any specific conditions or circumstances that apply for particular decisions.

Successions

The Court has the power when appointing a Deputy to appoint a ‘back up’ Deputy who can succeed the appointed Deputy in such specific circumstances or on the happening of particular events as determined by the Court, on either a permanent or temporary basis.

Example:
Mary is appointed by the Court of Protection as John’s Deputy to make decisions regarding his property and affairs. Mary notifies the Court that she is going on a lengthy holiday later that year and is not going to be able to carry out the Deputy role while she is away. The Court appoints Geoff to success Mary as Deputy for the time that she is away on holiday.

If there is a Lasting Power of Attorney

The Court can only give power to a Deputy to make a decision when it is not a decision that can be made by a donee of a Lasting Power of Attorney.

The Requirements of Deputies when making decisions

When making decisions the Deputy is subject to the same rules as any Decision Maker in that;

  1. The 5 statutory principles of the Act apply; and
  2. Any decisions must be in the Best Interests of the person.

Decisions that can and cannot be made by the Deputy

The Deputy is only permitted to make decisions;

  1. As set out by the Court; and
  2. At times when the Deputy has taken reasonable steps to determine that the person lacks capacity to make their own decision.
Need to know
Regardless of an appointment by the Court a Deputy cannot make a decision, or carry out an act if they know that the person has capacity to make the decision for themselves at the time that it is to be made.

The Court may provide the Deputy with powers to;

  1. Take possession or control of all or a specified part of the persons property or finances; and
  2. Exercise specified powers in respect of that property or finance, for example investment.

There are also specific decisions set out under section 20 of the Mental Capacity Act that a Deputy is not permitted to make. These decisions must be made by the Court and are as follows;

  1. Decisions to refuse or withdraw life sustaining treatment;
  2. Decisions that prevent a named person from having contact with the person;
  3. Decisions that consent to a direction to change arrangements for the provision of healthcare to the person;
  4. Decisions to sell the person’s property, regardless of whether this is for the person’s benefit or the benefit of others;
  5. The execution of the person’s will;
  6. The exercise of any power invested in the person as a trustee or otherwise.

Decisions made by a Deputy

When a Deputy has been appointed by the Court to make a particular decision (or decisions) the decision should be given the same regard as if the person had made it themselves.

Deputies and reimbursement

The Deputy is entitled to;

  1. Be reimbursed out of the person’s financial resource for reasonable expenses in discharging their functions; and
  2. If the Court directs it, payment for carrying out the function of being a Deputy.

Restraint

A Deputy that also provides direct care to the person is not permitted to use restraint when carrying out any acts unless;

  1. They believe that it is necessary in order to prevent the person from being harmed; and
  2. There is evidence that restraint is a proportionate response to the likelihood and seriousness of harm.

Restraint is defined under the Mental Capacity Act as;

  1. Any act that uses, or threatens to use, force to carry out another function to which the person resists; or
  2. Any act that restricts the person’s freedom of movement, whether or not they resist.

Monitoring Deputies

Under section 58 of the Mental Capacity Act it is the statutory function of the Office of the Public Guardian to monitor generally all Deputies appointed by the Court.

If the Court determines it necessary take additional monitoring steps it has the power to require the Deputy;

  1. Provides specific information to the Public Guardian to verify the appropriateness of the appointment; and
  2. Submit reports or information to the Public Guardian at predetermined intervals.

Click here for further information about the role and powers of the Office of the Public Guardian.

Power of the Court to amend or revoke an appointment

The Court has the power to amend an appointment it makes at any time if it feels that this is no longer in the person’s Best Interests.

The Court has the power to revoke the appointment of a Deputy if it is satisfied that;

  1. The Deputy has behaved, or is behaving in a way that contravenes the powers given to them by the Court; or
  2. The Deputy has behaved, or is behaving in a way that is not in the person’s Best Interests; or
  3. The Deputy proposes to behave in a way that contravenes the Court or would not be in the person’s Best Interests.

6. Applications to the Court of Protection

Permission to apply to the Court

The following people do not need permission from the Court in order to apply;

  1. A person who lacks, or is alleged to lack capacity;
  2. Where the person is under 18, anyone with parental responsibility for them;
  3. By the donee of a Lasting Power of Attorney for the person;
  4. By a Court appointed Deputy for the person;
  5. By anyone named in an existing Court order, if the application relates to the existing order; or
  6. A Relevant Person’s Representative (RPR) making a request to the Court under section 21A for the review of a DoLS.

All other persons must seek permission of the Court before making an application. When a request has been made to the Court for permission to apply the Court must have regard to;

  1. The applicants connection with the person who lacks capacity, or is alleged to lack capacity;
  2. The reasons behind the application;
  3. The benefit to the person of the order or direction being sought; and
  4. Whether the benefit can be achieved in any other way.

Interim orders and directions

Upon receipt of an application to the Court, the Court can make any order of give any direction that it deems necessary whilst the case is waiting to be heard so long as;

  1. There is reason to believe that the person lacks capacity in relation to the matter;
  2. The matter is one that the Court is permitted to make a decision or order about; and
  3. It is in the person’s Best Interests to make the order or give the direction without delay.

The power to request reports

Under section 49 of the Mental Capacity Act, the Court has powers to request any specific reports (written or verbal) to be prepared that it deems necessary to support the process of making an order or direction (final or interim).

The Court can;

  1. Require the Public Guardian prepare and provide a report;
  2. Appoint a Court of Protection Visitor to prepare and provide a report;
  3. Require a Local Authority prepare and provide a report;
  4. Require a Local Authority arrange for a report to be made (for example an Independent Social Work report); and
  5. Require an NHS body prepare, or arrange for a report to be prepared.

Powers of the Court of Protection Visitor and Public Guardian when preparing reports

Anyone outside of the Court’s own employ that it appoints is called a Court of Protection Visitor. Visitors can be ‘Special’ or ‘General’ in nature, normally depending on whether they hold a medical qualification or not.

To enable the Court of Protection Visitor to fulfil their functions, the Mental Capacity Act gives them powers to;

  1. Interview the person in private;
  2. Examine and take copies of health records;
  3. Examine and take copies of any record of the Local Authority (in respect of Adult Care and Support or Children’s Services functions);
  4. Examine and take copies of any other record held by the Local Authority (in respect of Adult Care and Support or Children’s Services functions);
  5. Examine and take copies of any records held by a registered service provider; and
  6. In the case of Special Visitor’s, carry out a private medical, psychiatric or psychological examination of the person.

Appeals

Under section 53 of the Act, appeals can be made to the Court of Appeal regarding any decision made by the Court of Protection unless the local Court of Protection Rules set out that appeals are to be made to the Court of Protection.

Costs and fees

The fees payable for anything dealt with by the Court are set by the Lord Chancellor, with permission of the Treasury.

Under section 55 of the Act, the Court has the full power to determine who pays what costs on a case by case basis unless the local Court of Protection Rules specify differently.

7. Court of Protection Rules and Practice Directions

The Court of Protection Rules (2017) and Practice Directions set out;

  1. The manner and form in which proceedings are to be commenced;
  2. The person’s entitlement to be notified of, and be made parties to proceedings;
  3. The allocation of judges to specific cases and in specific circumstances;
  4. The role of other judicial officers in exercising the powers of the Court;
  5. Arrangements for enabling the Court to appoint a suitable person to represent the person;
  6. Arrangements for enabling the Court to dispose of an application without a hearing;
  7. Arrangements for enabling the Court to proceed with a hearing in the absence of the person about whom it relates;
  8. Arrangements for enabling the Court to conduct private hearings or to exclude certain person’s from attending hearings;
  9. Rules around admissible evidence, including what should be admitted and how;
  10. How the Court makes decisions about costs, including who pays costs and how costs are reimbursed;
  11. How any orders or directions will be enforced;
  12. When and how appeals can be made, and how appeals will be considered.
Click here to access the Court of Protection Rules (2017).

8. The Public Guardian

The Public Guardian is an office set up in section 57 of the Mental Capacity Act, for the specific purpose of;

  1. Establishing and maintaining a register of Lasting Powers of Attorney;
  2. Establishing and maintaining a register of Deputies appointed by the Court;
  3. Supervising Deputies appointed by the Court;
  4. Directing Court of Protection visitors to visit the person, a donee or a Deputy;
  5. Receiving information specifically requested by the Court of Protection from donees or Deputies upon appointment (as part of verifying the appropriateness of a Deputy or donee);
  6. Recieiving reports from donees and Deputies appointed by the Court;
  7. Reporting to the Court as required regarding proceedings;
  8. Dealing with representations (including complaints) about donees and Deputies appointed by the Court;
  9. Publishing information about its role.

To enable the Public Guardian to fulfil their functions, the Mental Capacity Act gives them powers to;

  1. Interview the person in private;
  2. Examine and take copies of health records;
  3. Examine and take copies of any record of the Local Authority (in respect of Adult Care and Support or Children’s Services functions);
  4. Examine and take copies of any other record held by the Local Authority (in respect of Adult Care and Support or Children’s Services functions); and
  5. Examine and take copies of any records held by a registered service provider.

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