Court of Protection: managing affairs without power of attorney

What is the Court of Protection?

The Court of Protection gives you the authority to act on behalf of someone who has lost mental capacity, but has not put a power of attorney in place.

To set up a Lasting Power of Attorney (LPA), a person must have sufficient mental capacity to understand and direct their financial affairs. If they have already lost that capacity, it may be too late to complete and register an LPA application.

In this case, one of their relatives needs to apply to the Court of Protection to be appointed as their deputy, which gives you the right to act on another person's behalf.

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Who decides if someone has mental capacity?

Everyone should have the right to make choices about their own life. But sometimes injury, illness or disability can limit someone's capacity to understand complex choices and make decisions.

The Mental Capacity Act 2005 (England and Wales) protects the interests of people when they lack the mental capacity to make decisions about their own care and treatment. It also empowers individuals to make their own decisions for as long as possible.

The legislation offers some key protections:

• It should always be assumed that someone has the capacity to make their own decisions, unless proven otherwise following an assessment by a health professional
• Individuals should be supported to make their own decisions wherever possible
• Any decisions made on behalf of someone else must be in their best interests.

Similar legislation in Scotland and Northern Ireland protect the interests of people who may lack mental capacity:

• Adults with Incapacity (Scotland) Act 2000
• The Mental Capacity Act (Northern Ireland) 2016

A set of safeguards called the Deprivation of Liberty Safeguards (DoLS) protects the rights of people in hospitals or care homes who lack mental capacity.

If staff plan to deprive a patient or resident of their liberty, because they lack the capacity to consent to their care, then DoLS procedure must be followed.

It is designed to ensure that care is appropriate and in the individual's best interests; care arrangements are regularly assessed and reviewed; and individuals have the right to a representative to look after their interests.

The Alzheimer's Society has more detailed information about the Deprivation of Liberty Safeguards. 

DoLS was due to  be replaced by a new system called the Liberty Protection Safeguards from April 2022, however the government has announced its implementation is delayed ‘beyond the life of this Parliament’. Meaning we don’t expect any changes until after the  general election.

How to apply to the Court of Protection

To make decisions on another person's behalf without a lasting power of attorney, you need to apply to the Court of Protection to be appointed a deputy.

There are two types of deputyship:

• Property and financial affairs
• Personal welfare (for making decisions about medical treatment and how someone is looked after)

You can apply to be just one type of deputy or both. If you're appointed, you'll get a court order defining the scope of your powers.

If no relative is available to act as a deputy, the Court of Protection may appoint a professional, such as a solicitor or accountant. Professionals who act in this capacity are entitled to claim a fee.

Court of Protection fees

Applying to be a deputy is more expensive than applying for an LPA. The application fee is £371 and you may have other fees, including the cost of a solicitor if you use one to help prepare your application, plus an annual charge.

The process takes much longer than applying for power of attorney and a medical report may be required.

As well as an application fee, deputies are obliged to pay an annual supervision fee to the Court.

This can be £35 (if you are a financial deputy managing less than £21,000) or £320 if you are responsible for a larger amount. You will also have to pay a £100 assessment fee.

Paying a security bond

If you are a deputy appointed by the Court of Protection you may be obliged to give an annual account of your actions.

You must pay a bond to the Office of the Public Guardian (OPG) to protect the finances of the person you're a deputy for, in case you or someone else mismanages them.

The cost of the bond varies according to the size of the estate concerned.

Registering as a deputy

Once the Court has appointed you as a deputy, you'll need to be registered with each bank or financial institution, in the same way that an attorney registers a power of attorney.

You can find how to do this in our guide to setting up a power of attorney.

When you send out an official copy of the Court order, ask for it to be returned. You can order extra copies for £5 each by writing to the Court of Protection.