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Mental Capacity and Court of Protection Lawyers

Unlock the Law have created this helpful guide to give you information about what can be done when someone loses their ability to look after themselves and take care of their own affairs. Get the support and advice you need by filling out our online enquiry form.

Court of Protection Solicitors

Adults can lose the capacity to care for themselves for many reasons, such as through the ageing process or the development of Alzheimer’s. A sudden serious health condition such as a heart attack or a stroke can also cause an adult to lose capacity. An adult’s lack of capacity can also be connected to a mental health problem, a learning difficulty or a brain damage.

In cases where an adult is unable to look after their own affairs and make legal decisions for themselves, another adult can make an application to be their deputy. The deputy can then make decisions on the behalf of the adult. The parents or guardians of a child without capacity may apply to become a deputy when the child reaches adulthood. The deputy can make decisions on behalf of, and in the interests of, the adult without capacity.

Who Can Apply to be a Deputy?

A deputy must be 18 years or over and will normally be a close relative, friend or carer of the adult who has lost capacity.

There can be more than one deputy appointed.

Deputy Duties

The powers and duties that a deputy has depend on the type of order that has been granted. You will be responsible for making decisions on behalf of the adult and have a duty to consider their level of capacity every time you make a decision for them.

There are two kinds of deputy: welfare and financial. A deputy can have one or both of these powers. Welfare powers give a deputy the authority to make decisions about matters such as where the adult will live and what medical treatment they will have. When a deputy has financial powers, they can make decisions such as selling the person’s home, paying their bills and dealing with their savings and pension. 

When making a decision on the adult’s behalf, you must make several considerations:

  • Is this in the person’s best interests?
  • Has a high standard of care been met? For instance, this may be a decision that you need to factor medical advice into.
  • Have you made attempts to help the person understand the decision?

The Mental Capacity Act 2005 Code of Practice gives examples and more information about the general responsibilities of being a guardian.

Deprivation of Liberty Safeguards

The Mental Capacity Act 2005 also created protections for people who have lost capacity. The Deprivation of Liberty safeguards aims to ensure that vulnerable people who lack capacity are looked after by care homes and hospitals in a way that does not deprive them of their freedom.

How do You Apply?

Applications are processed by the Court of Protection, which is a specialist court set up under the Mental Capacity Act 2005. No matter whether you live in Newcastle, Manchester, Birmingham, Leeds, Sheffield, Bristol or Bradford, all applications for a Mental Capacity Order are processed by the the Court of Protection, which is located in central London. The process is started by filling out the forms listed on https://www.gov.uk/become-deputy/apply-deputy.

However, this is not something you have to tackle alone. Complete our online enquiry form to be put in contact with a local solicitor who can support and guide you through the process.

Contact a Court of Protection Lawyer

Unlock the Law recommend Family Law Liverpool for people looking for advice on mental capacity issues in the North of England. Fill out our online form today to be put in touch with an experienced Deprivation of Liberty or Court of Protection lawyer.

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England & Wales

Last Updated

Thursday, 17 March 2016


Family Law

Court of Protection

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