Court of Protection

The Court of Protection has jurisdiction over: appointment of deputies for those without LPAs, statutory wills, gifts above the deputy's authority, sale of P's home, disputes about best interests decisions, deprivation of liberty authorisations not covered by DoLS, financial abuse cases. Most applications are heard on papers (without an oral hearing). Senior judges hear contested or complex cases at the Royal Courts of Justice. The Court of Protection Rules 2017 govern procedure. Deputies appointed by the court are then supervised by the Office of the Public Guardian, which sets a supervision level, receives an annual report, and can investigate concerns.

In practice, most families encounter the court in one of two situations. Either a relative has lost capacity without making a lasting power of attorney, so someone must apply to be appointed deputy for property and affairs in order to deal with a bank, a pension or a house sale; or there is a serious disagreement about care, residence or medical treatment that cannot be resolved through a best interests meeting. The first is largely a paper process; the second is genuine litigation.

Worked example: Raymond has a stroke and can no longer manage his finances. He never made an LPA. His daughter applies for property and affairs deputyship, filing an assessment of capacity completed by a clinician, a declaration setting out Raymond's assets and income, and evidence that she has notified him and at least three other people entitled to be told. The application takes several months, so the family arranges an appointee for his benefits in the meantime, since that is handled by the DWP and not the court. Once appointed, she must keep Raymond's money separate from her own, obtain a security bond, and file an annual report. Selling his home, making gifts beyond small customary ones, or writing a statutory will each need a further application.

The misconceptions are worth naming. Deputyship is slower, more expensive and far more heavily supervised than an LPA — which is precisely why making an LPA in advance is the single best thing anyone can do. Health and welfare deputyship is granted only rarely; the court prefers to decide individual welfare questions itself. Being next of kin gives no authority at all. And urgent medical decisions do not wait for the court: clinicians act in the person's best interests, and only genuinely finely balanced or disputed cases such as withdrawal of life-sustaining treatment must be brought before a judge.

The court is created by the Mental Capacity Act 2005, decides disputed best interests questions, authorises deprivations of liberty outside DoLS, and becomes unnecessary where a valid lasting power of attorney exists. Read our guides to the Court of Protection and applying to be a deputy.