The Court of Protection and the Office of the Public Guardian - what's the difference?

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Our clients sometimes ask, ‘what is the difference between the Court of Protection and the Office of the Public Guardian?’

In her latest blog, Associate Solicitor Elizabeth Metcalfe outlines the differences between the two.

When someone cannot make important decisions for themselves because they lack mental capacity due to a severe brain injury or serious illness, they need a Deputy to help manage their affairs, and this is when the Court of Protection (COP) and the Office of the Public Guardian (OPG) get involved.

However, the COP and the OPG have separate roles during the Deputyship process.

What is the Court of Protection?

The Mental Capacity Act 2005 permits the Court of Protection (‘the Court’) to make an order about any matter where they believe a person (‘P’) lacks the capacity to decide important things for themselves.

The Court often makes a single order appointing someone to act as a Deputy for the incapacitated person, and it will be involved from the very start of that process. This type of order often allows the Deputy to make lots of decisions without having to return to the Court on each occasion.

The application for the appointment of a Deputy is submitted to the Court for consideration. If the Court is happy with the contents of the application and the person being suggested to take on the role of Deputy, it will issue an Order appointing them to help manage P’s affairs in their best interests.

The order sets out the scope of the Deputy’s authority. This is often quite wide, but it might, for example, grant or restrict their authority to buy or sell property on P’s behalf. If the Deputy does not have the authority to buy property for P, but it is in P’s best interests to move to a new home, the Deputy can make a later application to the Court asking for permission to sell and buy or rent. If the Court is happy with the application, the Court will issue a further Order.  The Court will also consider applications to approve certain types of gift or the making of a Will or to conduct litigation.

What is the Office of the Public Guardian?

The Office of the Public Guardian (OPG) supervises Deputies appointed by the Court to ensure they carry out their legal duties properly. It also investigates any reports of abuse of power by Deputies and, where necessary, act against them.

The Court requires most Deputies to obtain a ‘surety bond’, or a ‘security bond’, which acts as a form of insurance protecting the assets of the person whose affairs and property the Deputy is managing.

The OPG has a scheme for surety bonds that endorses a particular bond provider. The OPG will monitor the bond provider’s quality of service, ensuring cost-effectiveness and reliability.

Once appointed, the Deputy must submit annual accounts to the OPG and explain any decisions made for P during the previous 12 months.

The OPG has specific teams to support professional Deputies and lay Deputies in their roles. Professional deputies also receive a regular assurance visit from an OPG visitor to ensure they perform their legal duties properly.

If you have a family member or close friend who lacks capacity and would like to learn more about our Deputyship services, call us on 0845 160 111, email or complete our online enquiry form.