What is the Court of Protection?
What is the Court of Protection?
The Court of Protection is a legal court based in London and was established as part of the Mental Capacity Act of 2005. With the continued increase in mental health issues including dementia, the Court’s role has never been more important.
What does the Court of Protection do?
Its primary role is to decide whether someone has the mental capacity to make a particular decision for themselves, where that is in question and there are no alternative measures in place, for example, Lasting Powers of Attorney.
The Court of Protection has the power to make decisions relating to finance, property, health or welfare. The responsibilities of the Court include:
- Settling disagreements on mental capacity that can't be settled elsewhere
- Appointing a Deputy
- Authorising applications to sell or purchase property
- Granting permission for one-off decisions to be made
- Handling urgent or emergency applications where a decision must be made on behalf of someone else without delay
- Considering applications to make statutory wills or gifts
- Making decisions about when someone can be deprived of their liberty under the Mental Capacity Act
- Making decisions about the validity or the registration of a Lasting Power of Attorney, or an enduring Power of Attorney
- Making an urgent healthcare or personal care decision where there is no Deputy or Power of Attorney
What is a Court of Protection Deputy?
Where the Court is satisfied that a person lacks mental capacity to make their own decisions, it can authorise someone to make those decisions and sign documentation on the vulnerable person’s behalf by appointing them as a Deputy.
There are two types of Deputyship – one which covers Property and Financial Affairs, and the other which covers Health and Welfare.
If the Deputy is handling financial matters, they must keep the vulnerable person’s monies completely separate from their own and keep careful records of all decision making. A yearly report must be submitted to the Court confirming the actions taken in the preceding year.
What happens if there is a dispute?
An application to the Court of Protection could be necessary when there is a major disagreement regarding a serious decision about someone who lacks capacity, and no other attempts at resolution have succeeded. This could be about where they should live, or who they should have contact with. It may be a family member or even the person themselves who has a strong view about what is in the person’s best interests. If the application concerns a Deputyship or statutory will and is agreed by all parties, then a full hearing is not necessary, and an Order can be made based on written evidence only. However, if the application is objected to then a full hearing will be needed. Hearings are held in private and only parties to the application, which will include family members, can attend.