It is vitally important to protect people who cannot make decisions for themselves. This could be due to a mental health condition, a severe learning difficulty, a brain injury, a stroke or unconsciousness due to an anaesthetic or sudden accident.
There is a system in place which allows someone to be formally appointed to make decisions for the person with the incapacity.
The Court of Protection is the part of the court system that helps safeguard the property, financial affairs and welfare of those who lack capacity to make decisions for themselves. The Court of Protection can make orders authoring a person to act on behalf of some who lacks capacity. The person who acts is called ‘the Deputy’.
The Court of Protection has wide powers, including:
Anyone who is over the age of 18 may be considered by the Court of Protection to be appointed as a Deputy. However, it is unlikely that a person will be appointed as a Deputy for Property and affairs if they are bankrupt.
The Court of Protection will set out the Deputy’s specific powers in any Deputy Order they make. The powers given will depend on the needs of the person who lacks capacity. The powers can relate to property and affairs, personal welfare or both areas. For example, the Deputy could deal with the person’s bank accounts and make arrangements for day to day care needs. In addition, the Deputy may have the power to arrange investments or sell the person’s property.
A Deputy must only make decisions authorised by the Deputy Order. It is essential that any decisions are made in the best interests of the person who lacks capacity and the Deputy must apply certain standards of care and skill when making decisions.
It is a key requirement of the Deputy that, where possible, they involve the person lacking capacity in making any decisions. The Deputy should consider the person’s values, beliefs and wishes and should consult family, friends and carers when important decisions are taken. The Court of Protection will offer support to the Deputy and will provide supervision where necessary.