In fact the Court of Protection has been in existence in one form or another since 1324 and exists to protect, rather than exploit, people who, for one reason or another, do not have the ability to manage their own affairs and have not appointed attorneys to act for them.  The Court was re-organised following the Mental Capacity Act 2005 (hence the “new court”) but its essential function of protecting the assets of vulnerable people is unchanged.

It is possible (and advisable) to make a Lasting Power of Attorney appointing a relative, close friend or professional adviser to deal with your financial affairs if you should become unable to do so yourself.  In this way you are able to choose the person who will manage your affairs.  If you do not make a Lasting Power of Attorney and you become mentally incapable of dealing with your financial affairs, the Court of Protection will appoint a deputy to manage your affairs for you.  The court will normally appoint a close relative as deputy but in the absence of a suitable relative the court may appoint a professional person.

The administration of the Court of Protection is far from ideal and, of course, fees are involved.  The court deals with sensitive issues and inevitably there are complaints - mostly about delay - but it would be  absurd to suggest that the court has any agenda other than the protection of vulnerable people. 

Some reports have concentrated on the fact that funds in court currently earn interest at only 0.5%.  A BBC 4 programme reported that a client had lost an estimated £50,000 compared with investment outside the Court.  The truth is that most deputies are permitted by the terms of their appointment to withdraw funds from the Court to invest as they choose, provided that they act responsibly and take appropriate advice.  If the funds are allowed to languish in Court for a long period of time the fault is generally with the individual deputy rather than the Court. 

If you are a deputy acting for someone else it is important to take advice on your duties and responsibilities and the options open to you in managing the funds. 

Ted Foulkes, partner and Head of Court of Protection department at Exeter solicitors, Tozers LLP, comments: “Unfortunately, many of the articles which have appeared have painted a sensational and inaccurate picture, depicting the Court as a new, secret court dedicated to seizing the assets of vulnerable people.  The fact remains that most people would prefer to avoid the involvement of the court in the administration of their financial affairs.  The way to do that is to make a Lasting power of Attorney while you are mentally capable.  You can then choose the person to deal with your affairs if you should become incapable and keep the involvement of the Court to a minimum.”