What is the Court of Protection?
The Court of Protection is a specialist court based in London that makes decisions on financial and health and welfare matters for people who can’t make decisions at the time they need to be made (they “lack mental capacity”). This could be due to a medical condition like dementia or a stroke.
The Court of Protection is responsible for:
- deciding whether someone has the mental capacity to make a particular decision for themselves
- appointing ‘deputies’ to make ongoing decisions for people who lack mental capacity; a deputy is a person authorised by the Court of Protection to make decisions on behalf of someone else who can’t make those decisions for themselves.
- giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity to do so
- handling urgent or emergency applications where a decision must be made on behalf of someone else without delay
- making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration
- considering applications to make statutory wills or gifts
- making decisions about when someone can be deprived of their liberty under the Mental Capacity Act
Most cases are heard by district judges and a senior judge but can sometimes be heard by High Court judges. Cases can sometimes be transferred to a local court for hearing.
Most applications to the Court of Protection can be made through a paper application without the need to attend a physical court session. However, in contentious situations, hearings will be held in public, though reporting restrictions apply.
Applications to be appointed as a property and financial affairs deputy can now be submitted online.
When would you apply to the Court of Protection?
You may be facing a situation where a loved one is unable to make decisions for themselves on a specific matter or series of matters. Most situations tend to be around decision making on someone’s financial affairs. As the law stands, without some form of legal authority, nobody can undertake and assist with the management of another person’s affairs; it should be noted spouses and civil partners have no automatic rights to do so.
If the person losing capacity had already created a Power of Attorney document such as an Enduring Power of Attorney (EPA) or Lasting Power of Attorney (LPA) and if this document is registered with The Office of the Public Guardian (OPG), the attorneys they have appointed to make decisions on their behalf within the document will have the legal right to manage their affairs, without the need to approach the Court of Protection. However, the Court of Protection has jurisdiction to consider disputes with powers of attorney.
If your loved one has not created a valid legal document before losing capacity, then your only option may be an application to the Court of Protection to grant the authority for you to act on their behalf.
This is why it’s so important to put in place LPAs whilst you have capacity as it allows you to retain control over who will make decisions on your behalf if you become unable to do so. You can find out more information on LPAs here.
Why would I need a Court of Protection lawyer?
Applications to the Court of Protection can be a complex area of law. Before considering taking on the role of a deputy under a court order, the applicant should think through the implications of the regulations and duties required when acting for a person that is unable to make decisions for themselves.
Seeking legal advice before making an application is important to understand whether the matter may become contentious and the potential implications of this.
The Court of Protection will consider the application on the best interests of the protected party (the person who has lost capacity) and there are specific procedures that need to be followed before a person is appointed as a deputy. Members of The Association of Lifetime Lawyers can guide you through each stage of the Court of Protection process.
Once appointed, your legal adviser will be able to assist you with the deputyship requirements from appointment, including decision making under the Mental Capacity Act 2005, regulation, OPG (Office of the Public Guardian) requirements and annual reporting.
To find a local Lifetime Lawyer to support you through the Court of Protection process, please visit our find a lawyer page.