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Court of Protection

This court is constituted in England and Wales for matters which in Scotland are dealt with by Guardianship and the Office of the Public Guardian.

The Court of Protection’s role is to make decisions on behalf of people who lack the capacity to make them for themselves, due to impairment in the functioning of the brain. The decision in question could concern personal welfare or healthcare but it is more likely to involve financial matters.

Children lack the legal capacity to make many decisions simply by virtue of their age. If it is likely that a child, on reaching eighteen, will be able to make financial decisions, the Court of Protection will not be involved. Conversely, if the child is likely to lack capacity into adulthood and has assets of his or her own (as a result of a compensation claim, for instance) the Court of Protection may appoint a Deputy for property and affairs.

The Deputy is responsible for managing the child’s finances. This includes dealing with state benefits and tax, taking and acting on investment advice, setting a budget, accounting for all income and expenditure and dealing with the Office of the Public Guardian (the administrative arm of the Court of Protection). When making any decision, the Deputy must act in the best interests of the child and this requires a working knowledge of the Mental Capacity Act 2005 and its Code of Practice. The role can be onerous, time-consuming and difficult.

The Deputy can be a family member/carer or a professional person (such as a solicitor specialising in this field). It is often advisable for there to be a professional Deputy, particularly where substantial compensation is likely to be awarded. The cost of a professional Deputy and the Court fees and other expenses that will be incurred can be included as part of the compensation claim.