The Court of Protection is a specialist court that makes decisions on behalf of people who lack the mental capacity to do so, or that appoints other people to make those decisions. It plays an important role in safeguarding the rights and interests of individuals who can’t make important choices for themselves.
If you’re looking after someone who lacks mental capacity due to a serious accident, illness or disability, the Court of Protection gives you a legal framework to ensure that you can manage your loved one’s finances and other affairs.
What does the Court of Protection do?
The Court of Protection was established under the Mental Capacity Act 2005, and came into force in October 2007. Its responsibilities include:
- Making personal welfare decisions on behalf of people who can’t: These can range from determining the appropriate care arrangements to decisions about medical treatment.
- Appointing deputies: The Court can designate trusted individuals (usually family members) called deputies, to act on behalf of someone who can’t make decisions independently.
- Financial management: The Court oversees complex financial arrangements, such as managing compensation awards and safeguarding assets.
- Protecting rights: Ultimately, the Court of Protection ensures that an individual’s rights are respected and that decisions made for them by others are done so for their best interests.
When does the Court of Protection get involved in personal injury cases?
The Court of Protection often becomes involved in the aftermath of a personal injury claim, particularly when the injured person doesn’t have the capacity to manage compensation funds or make key decisions about them. This is most likely to happen when someone has suffered a brain injury, a spinal injury, or has another condition that impairs their mental capacity.
For families, this involvement can be a vital safeguard. The Court ensures that compensation is used responsibly, prioritising the injured person’s immediate and long-term needs. A court-appointed deputy for injury claims will have established processes to follow, allowing families to focus on their loved one’s recovery rather than worrying about financial and legal complexities.
What is the role of a court-appointed deputy?
A deputy is an individual appointed by the Court of Protection to act in the best interests of a person who cannot make their own decisions. Deputies may take on two main roles:
- Property and financial affairs deputy: This person will be responsible for managing the individual’s finances, including budgeting, paying bills, safeguarding compensation funds, and ensuring financial stability.
- Personal welfare deputy: This role involves making decisions about medical care, living arrangements, and other personal matters.
The responsibilities of both kinds of deputies include:
- Record-keeping: Deputies must maintain detailed records of all decisions and transactions.
- Adhering to court guidelines: Every action must align with the individual’s best interests and comply with the Court of Protection’s instructions.
- Prioritising preferences: Where possible, deputies should take into account the person’s past wishes, beliefs, and values.
While acting as a loved one’s deputy carries significant responsibility, it also provides an protection for vulnerable individuals, ensuring their needs are met with care and accountability. As a deputy, the Court gives you the power to make decisions on a loved one’s behalf, and in the long run this power can make caring for them easier, even with the added responsibility.
Why compensation might be placed in a personal injury trust
A personal injury trust is a legal arrangement that creates a bank account that compensation can be paid into. The trust sets out rules for who can access the funds (the trustees) and for what reasons, meaning the loved ones of a person who can’t take care of their finances can help manage these funds responsibly.
Personal injury trusts offer a range of benefits, including:
- The controlled management of funds: Trustees, usually including a court-appointed deputy, can oversee the use of funds to ensure they are spent appropriately and in the individual’s best interest.
- Protection from means-testing: Funds held in a personal injury trust are not counted when assessing eligibility for certain state benefits, ensuring that the injured person can access support without financial penalties.
- Financial security: By safeguarding personal injury compensation, a personal injury trust ensures that the funds are available to meet the injured person’s needs over the long term.
A personal injury trust can be a great help if you’re looking after an injured loved one, but establishing a trust requires legal expertise to help guide you through the process.
How to apply for a deputyship, step-by-step
You can read about how to apply to be a deputy for an injured person in detail via the gov.uk website, whether that’s to be a personal welfare deputy or a property and financial affairs deputy. But in essence, for both, you’ll follow these steps:
- Determine your eligibility: First, you’ll have to identify whether you’re eligible to act as a deputy. This typically requires being a close relative, caregiver, or someone with a strong connection to the individual.
- Tell the person you’re applying to represent: Explain to your loved one as best you can that you’ll be applying to be their deputy, or one of their deputies.
- Complete the relevant application forms: You can find these online here.
- Submit your application forms and supporting documents: Including the relevant medical evidence and financial details.
- Pay the application fee: Fees apply, though exemptions or reductions may be available based on the circumstances.
- Await the court’s decision: The Court of Protection will review your application and may request a hearing for complex cases.
- Receive the deputy order: Once approved, the Court issues an order outlining the deputy’s powers and responsibilities.
How Injury Lawyers 4U Can Support You
Caring for a loved one with a brain injury, or another condition that impairs their mental capacity, can be extremely challenging, but we can help. Our experienced legal experts can assist you in navigating the complexity of the Court of Protection and can help set up deputyships and personal injury trusts. We have over 20 years of experience in helping the injured make successful compensation claims, whether that’s for a brain injury claim, spinal injury claim, or a claim for another form of head injury. If you want expert legal advice, call us on 0333 400 4445 or fill in a contact form and we’ll get back to you right away.