What is the Court of Protection?

If you are caring for the affairs of a vulnerable family member through Lasting Power of Attorney or Deputyship, you will probably at one point have to deal with the Court of Protection. What role do they play? And how can they help when it comes to issues and problems related to a loved one’s finances or healthcare?

This and other important questions you probably have will be answered in our guide to the Court of Protection.

1) Summary in 30 Seconds

  • The Court of Protection looks after the interests of vulnerable people who lack the mental capacity to make decisions for themselves. 
  • Among other things, they appoint Deputies and settle disputes surrounding Power of Attorney.
  • Applying to the court can be a costly process. 
30 second summary

2) What is the Court of Protection?

The Court of Protection makes decisions on finance and welfare matters for individuals who cannot make a decision for themselves at the time, due to a lack of mental capacity. This could be someone with Dementia or Alzheimer’s’, someone who has suffered a serious brain injury or a person with a learning disability. 

Such individuals may need help to manage their finances or assistance with their day-to-needs. Such ones may also be vulnerable to abuse or mistreatment. The court therefore makes decisions for them so that they receive the help they need and their interests are protected.

Some decisions the Court of Protection might make are:

  • Issues relating to the Mental Capacity Act 2005. Mental Capacity is defined under the Mental Capacity Act 2005 as, in a decision-making scenario, the ability to (1) understand the information relevant to that decision (2) retain the information long enough to make a decision (3) weigh different information in the decision process and (4) communicate their decision.  Capacity is not a static or permanent state – a person might have capacity that comes and goes. They may also have the capacity to make decisions for themselves in some areas but not in others. Family members who are trying to assist a loved one through Power of Attorney, Deputyship or specific orders may need to have their mental capacity defined by the court, so as to best know what they need and what kind of arrangement would suit them best.

  • Appointing Deputies. The court appoints Deputies for Property and Finances and Personal Welfare.
  • Granting requests for one-off orders. The court can grant applications that authorise a person to perform specific tasks. This could be, for example, to sell a loved one’s property or arrange to move them into a care facility.  The powers will only extend to that task alone, and any other tasks that need performing will require a new application. 
  • Dealing with emergency or urgent applications.

  • Making decisions regarding Power of Attorney. While the Public Guardian deals with Attorney registrations and management, the court will decide on issues such as the removal of Attorneys, settling disputes and so on.
  • Making a statutory Will. If a person who lacks mental capacity does not have a valid Will, a family member or other loved one can make an application to the court on their behalf.

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3) Who Can Apply?

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There are certain restrictions relating to who can apply to the court of protection, and on what grounds. 

  • Attorneys, Deputies or anyone named in a court order. Any of these can apply without permission.
  • Family members healthcare trusts and local authorities. These must apply with the court’s permission. 

What if you disagree with a decision that has been made?

You might be unhappy with a decision that the court has made for a loved one, or an order that has been made regarding yourself. What can you do?

  • Get a solicitor or appoint a representative. If you are looking to dispute an order, have an Attorney or Deputy removed or make any other application to the court, make sure you have the right person assisting you. The court system is complicated and having someone with you, especially a solicitor who specialises in this area, will increase your chances of a successful outcome. 
  • Get advice. Before you begin your application to the court, make sure to get legal advice regarding your situation and what you are looking for help with. A solicitor who specialises in this area can advise you on the likelihood of you receiving a favorable decision. 
  • Arrange mediation or an informal meeting. Family members may have differing views regarding the way a loved one’s care is being handled. Common disputes often arise regarding where they live, what care or treatment they’re receiving or restrictions being made over contact. Although the issues might be serious, applying to the Court of Protection should still be a last resort. All efforts should be made to resolve the dispute informally, to avoid the stress and expense of court proceedings. 
  • If there is an unfavourable outcome, you may also be able to apply to the Court of Appeal. Again, this is a costly and expensive process so make sure you are financially prepared.

4) Court of Protection or Office of the Public Guardian?

If you are dealing with either Power of Attorney, Guardianship or Deputyship matters, you may wonder what the difference is between these two places, and who handles what. And at some point, you will probably deal with both authorities.

 The Office of the Public Guardian is not a court. They register Power of Attorney and supervise its use. Any issues or disputes raised to them will then be passed to the Court of Protection for their further investigation. 

making a will while terminally ill

5) Who Pays?

Court proceedings can be a very expensive process. Aside from court fees, you may need to instruct a solicitor to represent you. If you have applied for Deputyship, there will also be on-going costs that have to be paid. 

Property and Financial cases are usually paid out of the subject’s estate. While in Health and Welfare matters, each party must pay their own costs. 

There are exemptions for those on low-income and you may also be able to apply for legal aid in certain situations. Contact a solicitor who specialises in this area to see if you are eligible for financial assistance or exemption from costs.

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