What is the Court of Protection?

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Sometimes referred to as ‘the secret court’, people can often first learn about the Court of Protection only when the mental capacity of a loved one or client comes under question. Many people are unsure about the Court’s purpose and remit and this article gives an overview of when this Court might be needed and the powers it has.

It is a dedicated Court which oversees both financial and welfare applications made on behalf of people who lack the capacity to make certain decisions for themselves. Judges have specialist knowledge of capacity matters which can often be complex and emotional for families and the vulnerable person concerned.

The Court of Protection was established under the Mental Capacity Act 2005 and some examples of decisions it can make are:

  • Whether it is appropriate to appoint a Property & Financial Affairs or Health & Welfare deputy, who will be able to make ongoing decisions for a person who lacks capacity or to remove an already appointed deputy:
  • Whether a deprivation of liberty safeguards authorisation has been lawfully made;
  • Whether a Lasting Power of Attorney (or Enduring Power of Attorney) is valid and can also consider objections to the registration of these powers; and
  • To decide whether a person is able to make a specific decision for themselves and if necessary, go on to make decision specific orders on behalf of someone who lacks capacity. Some examples of such decisions are:
    1. Statutory Wills – where the person lacks testamentary capacity and either can express their wish or is believed to wish that their estate should be left in a manner that differs from intestacy rules;
    2. To approve loans or gifts;
    3. Authority to buy and adapt property or indeed sell property on their behalf;
    4. To consider where a person should live and/or receive care;
    5. To consider appropriateness of life sustaining treatment;
    6. To consider whether someone has capacity to marry or if divorce proceedings can be progressed; and
    7. To consider whether a person has capacity to engage in sexual relations.

The above demonstrates that the Court’s powers are wide reaching and cover a considerable variety of decisions. In all cases it must always ensure that the vulnerable person is at the centre of their consideration and that decisions are being made in their best interests. The decision making process will look at the vulnerable person’s specific circumstances, including finances, care arrangements and also their own wishes where it’s possible to ascertain them.

Anyone can apply to the Court of Protection – whether that is a family member, an existing deputy, the Local Authority or indeed the person who has been deemed to lack capacity and is therefore the subject of an existing Court Order providing they are over 18. If a person is under 18 and wishes to apply to the Court of Protection, their legal guardian can do this on their behalf.

The Court has their own suite of forms which vary depending on the specific application being made. Where possible an Order can be made on the papers alone, however, in complex matters or ones that have become contentious, hearings will be held to reach the best possible conclusion for the person concerned.

The Court will want to see that all efforts have been made to assess the person’s capacity in respect of that specific matter put before them. Capacity can fluctuate and just because a person lacks capacity for one decision does not necessarily mean they lack capacity for all other decisions to be made. It is essential that all efforts have been made to ascertain the person’s wishes and to support them in making a decision such as the use of communication aids. Section 1 of the Mental Capacity Act 2005 sets out the important principles to be used as a starting point as follows:

“(1) The following principles apply for the purposes of this Act.

(2) A person must be assumed to have capacity unless it is established that he lacks capacity.

(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.”

The Court expects certain people to be notified of certain applications put before them. This will include relevant people to the person who lacks capacity (such as family or close friends) as well as an expectation that the person themselves is also notified, unless this would cause them significant harm. This is in order to ensure that anyone who wishes to challenge the decision being made, or provide an alternative option for consideration, can do so.

If the Judge feels that further steps should be taken before they can reach a final decision they will issue an Order setting out further Directions for parties to follow. They might require more evidence to support a decision for example expert reports or financial statements.

Whatever the application, the Court of Protection is ultimately there to protect and preserve the vulnerable person’s position and best interests. As each decision is so unique to the person concerned, careful attention to that person’s specific circumstances is paramount. Sometimes difficult decisions need to be made which are not in line with the wishes expressed by the vulnerable person, however, the above process ensures that all efforts will have been made to ensure the best possible outcome is reached.

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