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

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

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

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.

Making a decision

Decisions must relate to either:

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

When making a decision, the Court will apply the 5 statutory principles of the Mental Capacity Act to ensure that the decision is in the Best Interests of the person.

The Court has the power to make decisions regardless of whether there has been a request for it 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 where it is satisfied that the order is no longer in the person's Best Interests.

Appointing a Deputy

When deciding to appoint a Deputy, the Court must be satisfied that this is preferable to making a decision itself. This will usually be because ongoing decisions will need to be made that are not practical for the Court to make. It is much more likely that the Court will appoint a Deputy for decisions about property and affairs, than for personal welfare.

For further information about appointing a Deputy, and the role of a Deputy, see: Section 5, Deputies.

The Court has the power to authorise a detention that deprives a person of their liberty if:

1. It considers this in the person's Best Interests; and
2. The person is eligible to be deprived of their liberty under Schedule 1A of the Mental Capacity Act (this Schedule prevents the Mental Capacity Act from authorising the detention where the Mental Health Act regime applies).

Although the Court has the power to authorise detention in any setting, it cannot grant an authorisation under the Deprivation of Liberty Safeguards (DoLS). A DoLS authorisation is required when the person is detained in a care home or hospital and must be granted by the supervisory body (Local Authority).

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 (manager of the care home or hospital) to request a standard authorisation.

The Court of Protection and the Family Division of the High Court both have powers to transfer proceedings relating to a person under 18 from one Court to the other. It is common for the Family Division to transfer cases involving children who are deprived of their liberty to the Court of Protection when they are 16 years old.

Under section 21A of the Mental Capacity Act the Court has powers to review any standard or urgent DoLS authorisation. It may do so upon receiving an application or of its own initiative if it considers that to be in the person’s Best Interests.

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.

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:

1. Whether the requirements for creating a Lasting Power of Attorney have been met;
2. The meaning or effect of a Lasting Power of Attorney; and
3. Whether a Lasting Power of Attorney has been revoked or come to an end.

The Court has the power to prevent registration of a Lasting Power of Attorney where:

1. Undue pressure was placed on the person to create or register the Lasting Power of Attorney;
2. Fraud was used to induce the person to create or register the Lasting Power of Attorney; or
3. The Attorney behaves, has behaved or is planning to behave in a way that is not in the person’s best interests.

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

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

If there is more than one Attorney appointed, the Court can decide to revoke the authority of as many of the Attorneys as it finds necessary.

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 Attorney has been authorised to make;
2. Give additional authority to the Attorney to make decisions outside of those in the Lasting Power of Attorney;
3. Permit the Attorney to purchase gifts with the person's financial resource outside of the gifts they are permitted to make; and
4. Authorise expenses or remuneration to the Attorney in carrying out their role.

If the Court considers it appropriate, it can direct (order) an Attorney to provide reports, accounts and other information regarding how they have carried out their role.

The Court has powers to make decisions 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 even if they are not yet 16, so long as the Court reasonably believes that the person will continue to lack capacity when they become 18.

The Court has powers to make decisions 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.

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 it to do so, if it thinks this is in the person's Best Interests.

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 be satisfied that this is preferable to making a decision itself. This will usually be because ongoing decisions will need to be made that are not practical for the Court to make. It is much more likely that the Court will appoint a Deputy for decisions about property and affairs, than for personal welfare.

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.

The Court has the power to appoint two or more Deputies, if 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.

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.

Where there is already a person with a Lasting Power of Attorney, the Court must not give power to a Deputy to make a decision that could be made by the Attorney.

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.

The Deputy is only permitted to make decisions:

1. As set out by the Court in the order appointing them; and
2. At times when they have taken reasonable steps to determine that the person lacks capacity to make their own decision.

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 consent for 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 settle (sell) the person's property (settled land is a technical concept which rarely arises);
5. The execution of the person's will;
6. The exercise of any power invested in the person as a trustee or otherwise.

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

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.

A Deputy is not permitted to do any act that intends to restrain the person, unless:

1. They are acting within the scope of their appointment; and
2. They believe the person lacks capacity in relation to the matter; and
3. They believe that it is necessary to do the act in order to prevent the person from being harmed; and
4. The act 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.

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

If the Court determines that additional monitoring is necessary, it has the power to require the Deputy:

1. Provide specific information to the Public Guardian; and
2. Submit reports or information to the Public Guardian at specified intervals.

For further information about the role and powers of the Office of the Public Guardian, see: Section 8, The Public Guardian. 

Under Section 16 (8), the Court has the power to revoke the appointment of a Deputy or vary their powers 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.

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

1. The person who lacks, or is alleged to lack capacity;
2. Where the person is under 18, anyone with parental responsibility for them;
3. Someone with Lasting Power of Attorney for the person;
4. A Court appointed Deputy for the person;
5. Someone 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.

Statutory bodies and organisations must also seek permission to apply, unless the application:

1. Concerns only property and affairs;
2. Is being made under section 21A for the review of a DoLS; or
3. Seeks a decision of the Court that will be relied upon to deprive a person of their liberty.

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.

Upon receipt of an application to the Court, the Court can make any order of give any direction that it considers 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.

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

Note: The court will only order a section 49 report to be prepared where the report is necessary and proportionate.  

The Court of Protection has a panel of Court of Protection Visitors. Their role is to provide independent advice to the Court and to the Public Guardian. Court of Protection 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 held by the Local Authority in respect of its Social Services functions;
4. Examine and take copies of any records held by a registered service provider; and
5. In the case of Special Visitor's, carry out a private medical, psychiatric or psychological examination of the person.

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.

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.