The legal principles and role of the Court of Protection relates to those who lack mental capacity to make decisions for themselves. These principles are listed in the Mental Capacity Act 2005.
In the circumstances where a person regains their mental capacity and is able to manage their property and financial affairs, the involvement of the Court and the authority afforded to any appointed deputies comes to an end. The authorities provided to the deputy tend to relate to decisions regarding the property and financial affairs of the person.
Regaining mental capacity – Applying to the Court of Protection
The person, who has regained mental capacity, will need to gain medical evidence which proves that this is the case and then apply to the Court of Protection to be discharged. The Court of Protection will then consider the application and supporting medical evidence.
The application will need to take into consideration and comply with the following:
The Court of Protection Rules 2017 (r24.5)
This rule deals with the disposal of property where a person ceases to lack capacity and governs the application to be made to the Court for the authority to transfer the assets back to the person.
Practice Direction 24B
This confirms the practical steps to take in making the application and the person can make the application themselves should they wish to do so.
Annual deputy report to the Office of the Public Guardian (OPG)
An appointed deputy must complete (as ordered to do so within their deputyship order) their annual report to the OPG (OPG102) and within this they must identify the person’s capacity to make financial decisions, displacing the principal of assumption of capacity, therefore allowing them as deputy to make the property and financial decisions for the person.
The mental capacity of the person must be declared by the deputy each year within the report and, therefore, should there be a belief that the person has regained capacity, this must be addressed in it.
Section 1(2) of the Mental Capacity Act
The presumption of capacity, as outlined in this section of the Mental Capacity Act, is one of the principals of the Act that governs a deputy’s authority therefore should evidence or opinions of the person’s capacity be presented to the deputy, they must gain further evidence of mental capacity to make property and finance decisions before they can continue to act in their role of deputy.
This is further supported in all deputyship orders, which state in the first paragraph that their appointment will be acknowledged with the words:
‘DEPUTY NAME is appointed as deputy… to make decisions on behalf of THE VULNERABLE ADULT that he/she is unable to make for himself/herself in relation to his/her property and financial affairs….’
And further still:
‘the deputy must apply the principles set out in section 1 of the Mental Capacity Act 2005…’
If the Court of Protection agree that the person has regained mental capacity then they will make an order for final accounts to be submitted to the OPG by the removed deputy and for the person to take back control of managing their property and financial affairs.
This order also ends the security bond that is in place, provides authority for the assets of the person to be transferred back into their name and deals with the closing costs of the deputyship.
How can Nelsons help?
Gemma Hopper is an Associate in our expert Court of Protection team who deals with a variety of applications within the Court. Gemma can provide advice to Court appointed deputies surrounding their authority and involvement with the OPG.
If you have any questions in relation to subjects discussed in this article, then please contact Gemma or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.