Some recent sensational newspaper headlines include:-
“Italian woman who was given forced caesarean section: I want my baby back” (The Guardian)
“I want my daughter, I’m suffering like an animal: Forced caesarean mother speaks out as council bids to gag Press” (Daily Mail)
It is becoming increasingly common to read stories in the news about decisions made by the Court of Protection. Do you know what the Court of Protection does? What are its powers?
The Court of Protection describes itself as a body that makes decisions and appoints deputies to act on behalf of people who are unable to make decisions about their personal health, finance or welfare.
The Court of Protection generally deals with matters where an individual who is no longer considered to be able to make decisions as defined under the Mental Capacity Act 2005.
If an individual has created a valid Enduring Power of Attorney or Lasting Power of Attorney this will take effect and generally the Court is not required to assist. However where there is not a valid EPA or LPA an application must be made for a Deputyship Order.
A Deputyship Order, if granted, would enable the applicant to deal with the individual’s affairs as if they were their Attorney. However, the dealings would be strictly limited as to the powers conferred under the Court Order.
The powers that can be granted are dependent on the application made. However, these can include the following: –
The right to make decisions as to the medical treatment received by the individual.
The right to make decisions as to the dealings connected with the finances and assets of the individual.
The Court very rarely grants Deputyship Orders in respect of a person’s personal welfare and medical treatment. These orders tend to be in exceptional circumstances and often more widely reported in the news.
When someone is appointed as an individuals’ Deputy, they will have a duty to the Court to ensure that they act in the individual’s best interests at all time and any decision made must have the least impact on the basic rights of that individual.
If a Deputyship Order is made, the Court will often require the applicant to take out a Security Bond with the bank, the value of which will be based upon the amount of assets the applicant is dealing with on behalf of the individual.
Also, the Court may require the Deputy to submit accounts on a periodic basis to confirm how they have been dealing with the individual’s assets. Furthermore, in some circumstances, the Court will send someone to check that the Deputy is managing the affairs of the individual properly.
It should also be noted that criminal offences can be brought if the Court takes the view that the individual is not being cared for appropriately. However, such actions are rare and, providing that decisions are made for the individual bearing in mind the guidance set down by the Court of Protection, it is unlikely that any personal liability will occur.
The Court of Protection has an important and often difficult role. If wish to discuss matters further please contact our Kate Beaumont.