The Court of Protection was created under the legislation of the Mental Capacity Act (2005) and has jurisdiction in England and Wales over the health and welfare and property and financial affairs of people who lack mental capacity to make these types of decisions for themselves.
This article helpfully explains the role of the Court of Protection and what to do if you need to make an application to the Court of Protection, for example to appoint a deputy for someone.
Table of Contents
- What is the Court of Protection?
- In what circumstances would a deputy be appointed?
- Who can act as a deputy?
- What is a deputy responsible for?
- What are the duties of a deputy as stipulated in the Mental Capacity Act?
- What must be done by a person applying to be a deputy?
- Is a deputy always needed where a person lacks capacity to manage their property and financial affairs?
- What is a COP3 form?
- What Court of Protection forms do TSF Assessments Ltd complete?
- What is involved in a COP3 Mental Capacity Assessment?
- What happens when a person lacks capacity?
What is the Court of Protection?
Established in 2007, the Court of Protection deals with decisions that fall under the scope of the Mental Capacity Act (2005). The Court of Protection was set up to safeguard the interests of people who lack capacity to make specific decisions relating to their health and welfare or property and financial affairs. The Court of Protection can rule as to whether they consider a person to have capacity to make a particular decision (or set of decisions). Where they find a person to lack capacity in respect of that decision, they have the power to appoint a deputy (or deputies) who must act in the best interests of that person and can make the specified decision(s) on their behalf. The Court can become involved where there are disputes, for example, with Lasting Power of Attorney, to remove an Attorney. Another very important function of the Court of Protection is to hear disputes or challenges to a DOLS (Deprivation Of Liberty Safeguards) authorisation.
Where it is thought that a person may lack capacity to make a specific decision, or set of decisions, an application can be made to the Court of Protection for a named person to act on their behalf, for example, under a deputyship arrangement. In order to appoint a deputy, the Court of Protection must be satisfied that the person lacks capacity to make decisions for themselves. A deputy would be appointed to manage either a person’s property and financial affairs or for health and welfare decisions. The Court can also appoint someone to act on a person’s behalf for specific matters such as sale of property, acting as a litigation friend or making a Statutory Will.
In what circumstances would a deputy be appointed?
Where a person lacks capacity to manage their property and financial affairs and is unable to make decisions about their finances for themselves, if that person has property or significant assets, a deputy may be appointed to administer that person’s affairs in their best interests.
A deputy could also be appointed where a person lacks capacity to make decisions about their health and welfare, although this is less common. Decisions concerning health and welfare can usually be made in a person’s best interests under section 5 of the Mental Capacity Act (2005), not requiring any additional authority. The Court of Protection may consider it appropriate to appoint a deputy for health and welfare decisions either if the person has complex and enduring medical needs, or where there are disputes about what is best for the person between family members or between family members and professionals.
The Court of Protection will consider the completed application for deputyship which includes the COP3 capacity assessment, and decide whether a person’s property and affairs, or health decisions, should be managed under a deputyship in their best interests.
Who can act as a deputy?
Deputies are appointed by the Court of Protection and are normally close family members. In some instances, the Court of Protection can appoint a specialist, for example a solicitor or an accountant, who would be paid for their duties as a professional deputy.
To become a deputy for someone’s property and financial affairs, you need to be over the age of 18, and have a good sound knowledge of financial matters and skills to be able to make the best financial decisions for the person that lacks capacity. If there is going to be more than one deputy you will need to advise the Court of Protection of this at the application stage.
You can apply to either act jointly on behalf of the person lacking capacity (meaning that all decisions must be agreed together by all of the deputies) or jointly and severally (meaning that the deputies can make decisions either on their own or together with the other deputies) in the best interests of the person who lacks capacity.
What is a deputy responsible for?
A deputy is responsible for making decisions (specified by the Court) on behalf of someone and must act in their best interests with every decision made. They must always be mindful of the individual’s level of capacity every time a decision is made for them and include them in decision making wherever possible.
What are the duties of a deputy as stipulated in the Mental Capacity Act?
The Mental Capacity Act (2005) Code of Practice includes guidance that frames the standards that a deputy must meet when carrying out their duties. The Court of Protection will issue a court order setting out the duties of the deputy.
The “Guidance for Deputies” is set out below:
When you’re making a decision, you must:
- make sure it’s in the other person’s best interests
- consider what they’ve done in the past
- apply a high standard of care – this might mean involving other people, for example getting advice from relatives and professionals like doctors
- do everything you can to help the other person understand the decision, for example explain what’s going to happen with the help of pictures or sign language
- add the decisions to your annual deputy report
You must not:
- restrain the person, unless it’s to stop them coming to harm
- stop life-sustaining medical treatment
- take advantage of the person’s situation, for example abuse them or profit from a decision you’ve taken on their behalf
- make a will for the person, or change their existing will
- make gifts unless the court order says you can
- hold any money or property in your own name on the person’s behalf
Property and affairs deputies must make sure:
- your own property and money is separate from the other person’s
- you keep records of the finances you manage on their behalf in your annual deputy report
What must be done by a person applying to be a deputy?
When applying to be a deputy for someone, you must visit the person to explain that their ability to make decisions is being questioned, who is going to apply to be their deputy, what the responsibilities of the deputy would be and how they would act on their behalf, where to obtain information and who they would need to discuss the application with. The COP14PAdep will need to be completed; the notification part is completed by the Deputy and the acknowledgement part should be completed by the individual if they are able to.
If the individual does not agree with the application and wants to object, then they will need to complete a COP5 application and provide supporting proof.
When dealing with an application you must also tell three other people who know the individual that you are applying for an application to become a deputy. You must send the three people a notice that an application will be put forward. If any of the parties disagree, they will need to submit a COP5 form. If in the event you could not notify anyone, then you will need to send in a witness statement COP24 form to the Court of Protection. The forms have to be sent in within 14 days, if they are not sent in the Deputy can apply without them.
All relevant forms must be sent into the court within three months of telling all parties, if this has not be adhered to the process will have to start again.
All applicants need to complete:
- an assessment of capacity form (COP3)
- a deputy’s declaration (COP4)
- a supporting information form (COP1A)
- an acknowledgment form (COP5)
Is a deputy always needed where a person lacks capacity to manage their property and financial affairs?
There are other, less restrictive ways of managing a person’s property and financial affairs. For example, a person in receipt of state benefits who does not have other substantial assets could have a designated appointee to manage those benefits on their behalf. Or, in certain circumstances, it may be appropriate for a person’s assets to be managed by a Trust.
If the person has mental capacity to make a Lasting Power of Attorney, they could appoint attorneys to manage their finances or health decisions for them, in the event that they lose capacity to do so themselves. We can provide assessments of capacity to make a Lasting Power of Attorney and also act as the certificate provider.
What is a COP3 form?
A COP3 form is part of the bundle of forms that needs to be completed as part of the application process for deputyship. It is specifically an assessment of mental capacity for the person who will become subject to the deputyship and will specifically assess their mental capacity to understand, retain, use, weigh and communicate information relevant to the decision(s) being applied for. A COP3 form should be completed by a health professional who is experienced in carrying out mental capacity assessments. At TSF Assessments Ltd, we employ experienced assessors who are all registered health professionals, including Social Workers, General Nurses, Mental Health Nurses, Learning Disability Nurses and Speech and Language Therapists. Our assessors complete COP3 assessments to the highest standard. Prior to submission to the Court of Protection, our COP3 assessments are also subject to our internal quality checking process, to ensure that the evidence submitted is robust and will be accepted by the Court.
What Court of Protection forms do TSF Assessments Ltd complete?
When an application to the Court of Protection is made, the Court will require an assessment of Mental Capacity from a professional to assist them in reaching a decision. This will usually be in the form of a COP3 (mental capacity assessment) or a COP24 (witness statement).
At TSF we can assist you by completing a thorough assessment of mental capacity. We complete the relevant Court documentation such as COP3s and COP24s to the highest standard to assist you in your Court of Protection application.
What is involved in a COP3 Mental Capacity Assessment?
In a COP3 mental capacity assessment, our assessor will ask the person questions to ascertain whether they are able to understand, retain and use and weigh relevant information specific to the decision being made. The assessor will also establish whether the person is able to communicate their decision by any means. Our highly skilled assessors are trained to support the person to understand or retain or weigh up information, for example, by providing relevant information where necessary and then checking their understanding of it.
Where a person is not able to verbally communicate their decisions by any means, we work alongside Speech and Language Therapists and Case Managers to ensure that the person is supported to communicate as best they can, for example, by using sign-language, eye gaze technology, Talking Mats, social stories, pictures and other methods of communication.
In such circumstances, questions may also be asked of the person’s main care-giver, to establish an accurate picture of the person’s ability to make decisions.
What happens when a person lacks capacity?
If it is established that the person lacks capacity in respect of the decision being made, then a COP3 mental capacity assessment form can be completed as part of an application for deputyship. Our assessors will gather evidence during their conversation with the person where it is evident that they are unable either to understand, retain, use and weigh information or communicate their decision.
This information is submitted on the COP3 form to evidence a lack of capacity in relation to the specific decision being questioned, alongside the person’s wishes, any views of others that may differ from the opinion of the mental capacity assessor, evidence of any diagnosis that might indicate a level of cognitive impairment and whether it is thought likely that the person will acquire or regain mental capacity in the future.
There must be evidence of a cognitive impairment present (this can be diagnosed or undiagnosed) and this must be because of the person not being able to understand, retain, use or weigh relevant information or not being able to communicate.
We are also skilled at providing capacity assessments in relation to executing Last Power of Attorney documents, settling Trusts and acting as a Trustee. We would always advise that you seek legal advice to ascertain which is the most likely and appropriate pathway in your unique set of circumstances, to ensure that any assessment of capacity is relevant to your requirements.
If you are unsure about your client’s capacity, then please contact us on 0333 577 7020 or info@tsfconsultants.co.uk
More information on the completion of COP3 forms can be found on our website.
If you need a COP3 mental capacity assessment, or have any questions, please complete the contact form below:
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