TL;DR
The Court of Protection is a specialist UK court that makes decisions on financial and welfare matters for people who lack mental capacity. It appoints deputies, resolves disputes, and authorises one-off decisions. The process is slower and more expensive than using a Lasting Power of Attorney made in advance.
Key facts
- The Court of Protection was established by the Mental Capacity Act 2005.
- Deputy applications typically take 4 to 6 months from filing to order.
- Application fee is GBP 408 (current rate, subject to revision); plus court hearing fee in contested cases.
- Deputies are supervised by the Office of the Public Guardian (OPG), with annual fees of GBP 35 to GBP 320 depending on case complexity.
- The court can make one-off orders for specific decisions where ongoing deputyship is not needed.
What the Court of Protection does
The Court of Protection is a specialist court within the Senior Courts of England and Wales. It makes decisions on financial and welfare matters for people lacking mental capacity under the Mental Capacity Act 2005. The court sits at First Avenue House in London and at several regional venues.
When the court is needed
The court is needed where: a person has lost mental capacity without an LPA in place; an existing LPA is being misused; a one-off decision (such as a statutory will, large gift, or sale of property) requires court authorisation; or there is a dispute about a person's care or finances.
Deputyship
Where ongoing decision-making is needed, the court appoints a deputy. Two types of deputyship exist: Property and Financial Affairs (financial decisions) and Personal Welfare (care and welfare decisions). Personal welfare deputyships are rarely granted; the court prefers to leave health and welfare decisions to be made on a best-interests basis as they arise.
The application process
Applications use Form COP1 (the main application) together with COP3 (capacity assessment), COP4 (deputy's declaration), and any supporting documents. The application fee is GBP 408 (subject to revision). The process takes 4 to 6 months from filing to a final order in straightforward unopposed cases.
Capacity assessment
Form COP3 requires a doctor or other qualified professional to assess the person's mental capacity to make the specific decision in question. The assessment is decision-specific: a person may have capacity for some decisions but not others.
Ongoing supervision
Property and Financial Affairs deputies submit annual reports to the OPG covering money managed, decisions made, and the person's circumstances. The OPG can investigate where concerns arise. Deputies must apply security (a bond) to cover potential losses caused by misconduct.
Statutory wills
Where a person lacks capacity and has no will, or has a will that the court considers no longer reflects their wishes, the court can authorise a statutory will. The court considers what the person would have wanted based on the available evidence.
Best interests decisions
The court's decisions are made on the basis of the person's best interests, considering their past wishes, present feelings, and the views of family and carers. Section 4 of the Mental Capacity Act sets out the best interests checklist.
Costs
Application fee is GBP 408. Court hearing fees apply in contested cases. Solicitors' fees on a typical uncontested deputyship application are commonly GBP 1,500 to GBP 3,500. Annual OPG supervision fees apply once appointed.
The Care Act 2014 statutory framework
The Care Act 2014, in force from April 2015, is the principal legislation governing adult social care in England. The Act consolidated and reformed the law on local authority responsibilities for assessment, eligibility, and funding of care services. Sections 9 to 13 cover the care needs assessment and eligibility determination; section 17 covers the financial assessment; sections 18 to 23 cover the duty to meet eligible needs.
The Care and Support Statutory Guidance, issued by the Department of Health and Social Care under section 78 of the Act, is binding on local authorities. Departures from the guidance must be justified on rational grounds and can be challenged through the council's complaints procedure, the Local Government and Social Care Ombudsman at lgo.org.uk, and ultimately by judicial review.
The national eligibility threshold under the Care and Support (Eligibility Criteria) Regulations 2015 has three components: the adult has needs arising from a physical or mental impairment or illness; the needs prevent the adult from achieving two or more specified outcomes; and this has a significant impact on the adult's wellbeing. The threshold is applied consistently across England but its application is fact-sensitive.
Means-testing thresholds and rules
In England, local authority care funding is means-tested with two capital thresholds. Capital below GBP 14,250 is disregarded; the local authority pays in full apart from a contribution from income, leaving the person with a Personal Expenses Allowance of GBP 30.65 per week. Capital between GBP 14,250 and GBP 23,250 attracts a tariff income of GBP 1 per week per GBP 250 of capital above GBP 14,250. Capital above GBP 23,250 means the person self-funds.
The family home is generally disregarded for home care funding because the person continues to live in it. For residential or nursing care, the home is included in the capital test unless a spouse or civil partner lives there, a relative aged 60 or over, an incapacitated person, or a dependent child under 18 lives there. The 12-week property disregard allows the council to fund the first 12 weeks of permanent residential care without including the home in the means test.
Scotland operates a different system with free personal care (a fixed weekly contribution toward personal and nursing care, regardless of means). Wales has higher capital thresholds for residential care than England. Northern Ireland operates yet another framework. The thresholds and details are reviewed periodically; the current government has consulted on care funding reform but has not implemented the Dilnot Commission cap proposed in the Care Act.
NHS Continuing Healthcare
NHS Continuing Healthcare (CHC) provides fully NHS-funded care for adults with a primary health need (rather than primarily social care needs). CHC is not means-tested; the full cost of care is met regardless of the person's wealth or income. The assessment is administered by Integrated Care Boards (ICBs) using the Decision Support Tool covering 12 care domains.
Eligibility decisions are based on the nature, intensity, complexity, and unpredictability of the person's needs. CHC eligibility is heavily contested in practice; many initial refusals are overturned on appeal through the local resolution process, NHS England, and ultimately the Parliamentary and Health Service Ombudsman. Specialist CHC advisers (often nurse-led firms) handle many appeals.
NHS-funded Nursing Care (FNC) provides a contribution toward nursing care costs in care homes for residents who need nursing but do not meet the CHC threshold. The current FNC rate is reviewed annually; it is paid to the care home directly to cover the nursing element of the care.
Mental capacity and Lasting Powers of Attorney
The Mental Capacity Act 2005 provides the framework for decision-making where an adult lacks capacity to make a decision. Capacity is presumed unless the contrary is established on the balance of probabilities. The Act sets out a decision-specific test: a person may have capacity for some decisions but not others.
Lasting Powers of Attorney (LPAs) come in two types under the MCA. Property and Financial Affairs LPAs cover money management, banking, and property. Health and Welfare LPAs cover medical decisions and care arrangements. LPAs must be registered with the Office of the Public Guardian (OPG) before they can be used. Registration fees are GBP 82 per LPA, with fee remission for those on low income.
Where capacity is lost without an LPA in place, the Court of Protection appoints a deputy under the MCA. The process takes 4 to 6 months and is more administratively demanding than LPA registration. The OPG supervises deputies through annual reports and (for property and financial affairs deputies) requires security through a bond.
Care Quality Commission regulation
The Care Quality Commission (CQC) is the independent regulator of health and social care providers in England under the Health and Social Care Act 2008. The CQC registers and inspects care homes, domiciliary care providers, hospitals, GP practices, and other care services. Inspection ratings are: Outstanding, Good, Requires Improvement, Inadequate. The CQC publishes inspection reports at cqc.org.uk.
The CQC's enforcement powers include warning notices, civil penalties, prosecution, suspension of registration, and cancellation of registration. Providers rated Inadequate are typically subject to special measures with intensive oversight and a timetable for improvement. Persistent failure can lead to deregistration and closure.
Scotland operates the Care Inspectorate, Wales the Care Inspectorate Wales, and Northern Ireland the Regulation and Quality Improvement Authority. Each performs broadly equivalent functions under the relevant devolved legislation.
Disclaimer
This article provides general information on the Court of Protection and is not personal legal advice. Applications are complex; regulated legal advice is recommended.
Frequently asked questions
Who can apply to be a deputy?
Anyone with a legitimate interest, typically a family member. The court considers whether the proposed deputy is suitable.
How long does deputyship take to set up?
4 to 6 months from application to court order in straightforward cases.
Can deputies make health decisions?
Personal Welfare deputyships are rarely granted. Health and welfare decisions are usually made on a best-interests basis as they arise without an appointed deputy.
How much does a deputy charge?Lay (family) deputies generally do not charge themselves. Professional deputies (solicitors, accountants) charge professional rates approved by the court.
Is the Court of Protection the same as the Probate Court?
No. The Court of Protection deals with people who lack capacity during their lifetime. Probate handles estates after death.
Frequently asked questions
Who can apply to be a deputy?
Anyone with a legitimate interest, typically a family member. The court considers whether the proposed deputy is suitable.
How long does deputyship take to set up?
4 to 6 months from application to court order in straightforward cases.
Can deputies make health decisions?
Personal Welfare deputyships are rarely granted. Health decisions are usually made on a best-interests basis as they arise.
How much does a deputy charge?
Lay (family) deputies generally do not charge themselves. Professional deputies charge professional rates approved by the court.
Is the Court of Protection the same as the Probate Court?
No. The Court of Protection deals with people who lack capacity during their lifetime.
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