The Court of Protection

When someone can no longer make decisions due to a lack of mental capacity, the Court of Protection will appoint a trusted person to look after their best interests.

What is the Court of Protection?

The Court of Protection is an official court that makes decisions about the financial or physical wellbeing of a person who is unable to do so. This can be due to a number of reasons such as illness, personal injury or age. Though the Court of Protection is based in London, most cases can be heard by district judges.

Established under the Mental Capacity Act 2005, the Court of Protection is responsible for:

  • Deciding if a person has the mental capacity to make their own  legal decisions
  • Appointing deputies to make decisions on the person’s behalf, either as a one off or on a long-term basis
  • Handling urgent cases where a decision needs to be made quickly
  • Making decisions about a lasting power of attorney
  • Considering the validity of requests to make statutory Wills and/or gifts
  • Deciding if someone can be deprived of their liberty under the Mental Capacity Act

What is a deputy?

If someone is found to lack the capacity to make decisions for themselves, the Court of Protection will often appoint a family member or friend to make the decision(s) for them. This person is known as the deputy. If there is no suitable family or friend, or they don’t want the responsibility, a solicitor can be appointed as the deputy instead. It is the responsibility of the deputy to always act in the person’s best interest and are only allowed to make decisions the Court of Protection has identified. This is usually matters regarding money.

The deputy must follow several rules that are designed to stop them exploiting their position. These conditions include keeping their money separate, withholding the ability to make Wills on the individual’s behalf and reporting to the Office of Public Guardian justifying any decisions they have made.

Applying to the Court of Protection

You can apply to the Court of Protection to help someone who doesn’t have mental capacity. Before you apply, check to make sure the person doesn’t already have a deputy or power of attorney.

You can apply for one-off decisions about an issue that is not deemed urgent. You can also apply if there is something that puts the person with diminished mental capacity at immediate risk. The Court of Protection has a special process for emergency applications. Apply to the Court of Protection to help someone in the long-term with issues about money and property and/or health and welfare.

Applying to the Court of Protection is a complex affair with many different steps and legal documents to complete within a certain time frame. At Trethowans, our team of specialist solicitors are here to help guide you through the process and ensure all steps are covered for either a successful application or for contesting it.

To learn more about how we can help you negotiate the Court of Protection, please don’t hesitate to contact our experienced solicitors today on 0800 2800 421.

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