The Court of Protection is a court that deals with disagreements or difficult situations involving mental capacity. Court of Protection orders are created in England & Wales.
If someone is no longer able to manage their own affairs and have not granted an Enduring or Lasting Power of Attorney then you may need to apply to the Court of Protection. The Court of Protection may also become involved if there is an issue over the validity or use of an Enduring or Lasting Power of Attorney.
The Court of Protection exists to safeguard vulnerable people who lack mental capacity and are unable to make decisions for themselves. The decisions may relate to finances or health and welfare. A person who is subject to a Court of Protection Order is known as a ‘Protected Person’.
The Court of Protection has the power to:
Appoint a deputy to make ongoing decisions on behalf of a person who lacks capacity, in relation to either the person’s welfare or property and affairs and make decisions about a Lasting Power of Attorney (LPA) or Enduring Power of Attorney, including whether the power is valid, objections to registration, scope of Attorney powers and removal of Attorney powers.
If someone has become mentally incapable of handling their affairs, including the operation of their account, unless an LPA is in operation, a Court of Protection Order will be necessary to allow withdrawals from the account, having been applied for through the Office of Public Guardian (OPG).A Local Authority can also apply for authority to access and manage the funds belonging to and in the sole name of the incapable adult to meet his/her living costs. Ownership of the funds remains with the adult at all times although the adult will not be able to access funds.
This is an order provided by the Sheriff Court which authorises a person (or persons) to act and take a one-off action or make decisions on behalf of an adult with mental incapacity. The order allows the person appointed to do certain one-off things such as signing legal documents or to sell the adult’s house or sign forms agreeing where someone can live. The intervention order must specify the exact power that has been provided. Once that particular decision or certain action has been completed the order will automatically expire. We can only accept an order if the action or decision relates to your financial affairs. Anyone with an interest can make an application for an Intervention Order.
This is an order provided by the Sheriff Court which authorises a person (or persons) to act and make decisions on behalf of an adult with mental incapacity and is similar to a Court of Protection (England & Wales). Anyone with an interest can make an application for a Guardianship Order. Dependant on the needs of the adult the order can be made for a financial and/or welfare order.
Guardianship is likely to be more suitable when decisions need to be taken on an ongoing, rather than one-off basis.
Based on the adult’s condition and circumstances, the Sheriff will decide how long the order should last. Orders are usually granted for a period of 3 years, although it might be granted for a longer period of time or even for the lifetime of the adult.
Once appointed a court order sets out the powers given together with a certificate of appointment.
It is also important that the guardianship order specifies not only that the guardian has the power to operate an account but also any powers which may be required by the guardian such as the right to open and close the account.
We can only accept an order that gives the guardian control over your financial affairs.
In England and Wales mental incapacity is governed by the Mental Capacity Act 2005. Mental incapacity is defined in the Act to arise ‘because of an impairment of, or a disturbance in the functioning of, the mind or brain’. The assessment of a person’s capacity must be based on their ability to make a specific decision at the time it needs to be made and not their ability to make decisions in general.
The Act also provides that the impairment or disturbance does not have to be permanent. A person can lack capacity to make the decision at the time it needs to be made even if the loss of capacity is partial, temporary or their capacity changes over time.
Mental capacity means being able to understand a specific decision, retain information for long enough to make it, weigh up different choices and communicate the decision in any way possible.
The starting assumption must always be that the person has the capacity to make a decision, unless it can be established that they lack capacity. A person may also lack capacity to make decisions about one issue but not others.
Mental capacity can change over time and someone may not be able to make a decision at one time, and then be able to make the same decision at another time.
Someone with mental capacity is able to communicate decisions through speech, signs, gestures or in other ways. Taking time to understand or communicate may be mistaken for a lack of mental capacity, but having dementia, for example, doesn’t necessarily mean someone can’t make any decisions themselves.
If someone is having difficulty communicating what sort of decision they want to make, an attempt should always be made to overcome that difficulty and help the person decide for themselves.
Assessment of mental capacity is a medical function - our staff, no matter how well they know you as a customer or your family and friends, aren’t medical professionals and so can’t advise on someone’s mental capacity.