The Mental Capacity Act provides for the Court of Protection to make decisions in relation to the property, affairs, healthcare and personal welfare of adults and children who lack capacity. The Court has the power to make declarations about whether someone has the capacity to make a particular decision. In reaching a decision, the Court must apply the statutory principles set out in the Mental Capacity Act. It must also make sure that its decision is in the best interests of the person who lacks capacity.

The role of the Public Guardian is to protect people who lack capacity from abuse. The Public Guardian is supported by the Office of the Public Guardian (OPG): www.publicguardian.gov.uk. The OPG replaced the Public Guardianship Office, the former administrative arm of the Court of Protection. They are based in North London and have responsibilities which extend throughout England and Wales (separate arrangements exist for Scotland and for Northern Ireland).

We have built an enviable reputation investing money on behalf of protected individuals. We are highly experienced, and proud of the client-friendly professionalism that we bring to our work. Not only do we act for many lay deputies, but we are also instructed in investment matters by many of the professional deputies appointed to the panel of the Court of Protection. We think that fact speaks volumes about the confidence the experts have in our advice.

What is the Court of Protection?

The Court of Protection have the same powers, rights, privileges and authority in relation to mental capacity matters as the High Court. It is a superior court of record and is able to set precedents (set examples to follow in future cases).

The Court of Protection have the power to:

• Decide whether a person has capacity to make a particular decision for themselves;

• Make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;

• Appoint Deputies to make decisions for people lacking capacity;

• Decide whether a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA) is valid; and

• Remove Deputies or Attorneys who fail to carry out their duties, and hear cases concerning objections to register an LPA or EPA and make decisions about whether or not an LPA or EPA is valid. Details of the fees charged by the court, and the circumstances in which the fees may be waived or remitted, are available from the Office of the Public Guardian (OPG) at www.publicguardian.gov.uk.

In reaching any decision, the Court must apply the statutory principles set out in the Mental Capacity Act. It must also make sure its decision is in the best interests of the person who lacks capacity.

The day to day running of the Court is the responsibility of a Senior Judge, Denzil Lush who was formerly the Master of the Court of Protection.

The President of the Court of Protection has also nominated a number of additional High Court, Circuit and District Judges to hear Court of Protection cases. Two District Judges will hear cases full time in the Court's central registry in Archway. The other Judges will hear cases part time in the courts where they are based across England and Wales.

What is the Office of the Public Guardian?

The role of the Public Guardian is to protect people who lack capacity from abuse. The Public Guardian is supported by the Office of the Public Guardian (OPG): www.publicguardian.gov.uk.

The OPG helps to protect people who lack capacity by:

• Setting up and managing a register of Lasting Powers of Attorney (LPA);
• Setting up and managing a register of Enduring Powers of Attorney (EPA);
• Setting up and managing a register of Court orders that appoint Deputies;
• Supervising Deputies, working with other relevant organisations (for example, social services, if the person who lacks capacity is receiving social care);
• Sending Court of Protection visitors to visit people who may lack capacity to make particular decisions and those who have formal powers to act on their behalf such as Deputies;
• Receiving reports from Attorneys acting under LPAs and from Deputies; and
• Providing reports to the Court of Protection, as requested, and dealing with cases where there are concerns raised about the way in which Attorneys or Deputies are carrying out their duties.

The Office of the Public Guardian (OPG) was established in October 2007 and it supports the Public Guardian in registering Enduring Powers of Attorney (EPA), Lasting Powers of Attorney (LPA) and supervising Court appointed Deputies. The OPG is an agency of the Ministry of Justice.

The OPG helps and supports Attorneys and Deputies in carrying out their duties, and protects people who lack the mental capacity to make decisions for themselves. It does this through regulating and supervising Court appointed Deputies, and by registering LPAs and EPAs. In some cases, where there are suspicions that an Attorney or Deputy might not be acting in the best interests of the individual lacking capacity, the OPG will work with other organisations to ensure that any allegations of abuse are fully investigated and acted on. The OPG also provides information on mental capacity to the public, legal and health professionals, and researchers, and can provide contacts with other organisations working in the field of mental capacity. The OPG also has responsibility for policy issues relating to the Mental Capacity Act and in relation to mental capacity issues generally.

The OPG works closely with the Court of Protection to make sure that the best interests of people who lack mental capacity are served. If you have not made or registered an LPA for property and affairs, or for personal welfare, and you lose capacity to make decisions on these areas for yourself, someone else may apply to the Court for the power to make these decisions for you. Only the Court is able to decide who is the best person to do this for you, and it will give that person whatever powers it believes are necessary for them to act in your best interests.

The Court may appoint a Deputy decision maker, who can be given a wide range of powers, or it may make a single order, covering an individual decision. In coming to its decision, the Court may ask the OPG to obtain a report on an individual case. This report can cover a wide range of factors, and may involve the OPG sending a specialist visitor to gather the facts in the case. Once the Court has made its order, it is up to the OPG to monitor and supervise any Deputies who are appointed. The OPG can decide on the level of supervision each case requires, and this will depend on a wide range of factors.

Where a Deputy fails to meet the supervision requirements laid down, the OPG has the power to take the case back to the Court. The case will then be reviewed, and the Court may take further action, including terminating the appointment of the Deputy.

Investing Damages awards for individuals who lack capacity

Deputies need to ensure that a Protected Individual's financial affairs are managed sensibly and responsibly. Deputies, whether professional or lay are able to use Independent Financial Advisers such as Nestor Partnership, when considering investment strategies for Individuals Lacking Capacity. For deputies, Nestor Partnership is the expert of choice in this highly specialised area.

Please contact us for further details about our range of specialist deputyship services.