Contested Court of Protection

It is important to recognise that a deputy is different to an attorney. A deputy is appointed by the Court of Protection to manage the affairs of the patient when they are deemed to lack capacity.

An attorney, on the other hand, is appointed by the donor under a Lasting Power of Attorney (LPA) at a time when they still have capacity.

A deputy and an attorney make decisions on behalf of another person.

The Office of Public Guardian (OPG) protects people in England and Wales who do not have the mental capacity to make certain decisions for themselves. The OPG is sponsored by the Ministry of Justice.

The OPG are responsible for:

• Registering lasting and enduring powers of attorney
• Maintaining the public register of deputies, attorneys and guardians
• Supervising deputies and making sure they carry out their work properly
• Investigating concerns made against an attorney, deputy or guardian and taking appropriate action, where necessary.

The Court of Protection is an English court with jurisdiction to make financial or welfare decisions on behalf of a person who lacks capacity under the Mental Capacity Act 2005.

A statutory is a will which is made by the Court of Protection on behalf of someone who lacks the capacity to make a will themselves. They are named statutory wills as the Court of Protection is authorised to make them under The Mental Capacity Act 2005.

Where it is considered necessary to make a will for someone who lacks capacity, an application will need to be made to the Court of Protection to authorise the will’s execution. An attorney or deputy do not have authority to execute the will without the Court of Protection’s approval.

A statutory will may be deemed necessary where:

• The person lacking capacity does not have a will;
• It would be beneficial for estate planning purposes;
• The beneficiaries under an existing will have pre-deceased;
• The person’s estate has either increased significantly in value or decreased;

The Court of Protection is more likely to authorise a statutory will where the person lacking capacity has never executed a will or there has been a significant change in their circumstances.

It is possible to object to the donor’s choice of attorney if you believe that the chosen person is not suitable. You may also object to the registration of an LPA if you believe that the donor lacks the necessary capacity to understand what they are doing.

The Court of Protection prefers to appoint a relative or a close family friend to act for a person who lacks capacity. This is on the basis it would be in that person’s best interests to make the appointment. Alternatively, a professional such as a solicitor or an accountant may be appointed instead. If none of these options are suitable, the court can appoint a panel deputy.

The court can appoint more than one deputy to act for the same person but they do not encourage the appointment of more than three individuals. The deputies can be appointed to act jointly or jointly and severally.

A panel deputy is a person with specialist knowledge of mental capacity law. The Court of Protection will choose a person from this list when there is no one else willing or suitable to act as a deputy for a person lacking mental capacity.

The court aims to issue an Order within four to six months of the application being stamped. A number of forms need to be completed which include a capacity assessment by a relevant professional.

It is possible that an application may take longer than the above time frame if any objections are raised. If proceedings become contested, an application may take a number of months to resolve.

The court usually requires a deputy to provide a form of security bond to cover the risk of financial loss caused to the person lacking capacity as a result of their actions.

If the deputy acts appropriately within the terms set out in the court’s Order, it is unlikely that they will incur liability. However, if a deputy is found to be acting inappropriately, the court has the ability to call in the security bond.

A deputyship order usually lasts for as long as the person concerned lacks capacity to make decisions for themselves and can last for a person’s lifetime. The appointment of a deputy should be terminated if it becomes clear that a person is able to make decisions for themselves. Capacity should be reviewed on regular intervals.