What is the Court of Protection?
Established by the Mental Capacity Act 2005, the Court of Protection is specialist Court and is the ultimate decision-maker in relation to those lacking capacity to take those decisions themselves. This could be by way of Alzheimer’s/Dementia, mental heath issues, learning difficulties and other disabilities or acquired brain injuries.
There are come key terms that you’ll hear in regards to the Court of Protection. If someone makes a power of attorney they are the “Donor”, the individuals they appoint to make decisions on their behalf are the “Attorneys”. If a Donor has already lost capacity so cannot choose their own Attorney one is appointed for them by the Courts. These individuals are “Deputies” and have similar powers as Attorneys.
What matters do the Court of Protection deal with?
The most common function of the Court is dealing with day to day applications to appoint a Deputy to manage financial affairs or to make health and welfare decisions, for people who lack the capacity. Sadly, a large proportion of the COP’s function is dealing with disputes that arise during the lifetime of a Donor who lacks capacity and the cases that they see are wide ranging and can include any of the following.
Capacity is presumed unless it can be proven that a person lacks capacity. A person is deemed unable to make a decision and lacking capacity if he cannot understand the information relevant to the decision; he cannot retain that information; he cannot weigh information as part of the process of making the decision; and he is unable to communicate even with support.
There is no specific requirement for a professional (medical or otherwise) to carry out an assessment of someone’s capacity. Someone responsible for providing care to and who is involved in the vulnerable person’s life can carry out the assessment as and when a specific decision needs to be made. That said however, disputes may arise as to whether an individual does indeed have capacity and the ultimate decision maker will be the Court.
Sometimes, Attorneys or Deputies abuse their powers by either overreaching what they are allowed to do or simply ignoring the rules. For example, people will “gift” money to themselves or a third party without understanding the rules and implications surrounding this. We have an ever ageing population and vulnerable people are open to financial abuse and sadly, this is something that we see a lot of.
Objections to Registration
When the Donor loses capacity,, the onus is upon the Attorney named to register the power. As part of the process, family members and other interested parties are to be served with notification of a registration. This can often lead to disputes with the family or indeed, concerns being raised by the Local Authority or care provider. Disagreements may arise as to the suitability of that Attorney or whether the Donor lacked the capacity to grant it in the first place.
Disputes may also arise during lifetime as to certain decisions that need to be made. For example, what type of care the individual receives how to invest and use their finances or whether they should receive life saving treatment. These can be very emotive and difficult disputes to manage and ultimately, if the family and interested parties cannot agree, the Court has the overall decision making power.
A Statutory Will is one made by the Court of Protection on behalf of someone who does not have capacity to make a Will for themselves. The Court needs to approve the Will before it can be executed to be sure that the contents of the Will are in the best interests of the person who lacks capacity. Applications for approval of Statutory Wills are commonly made if someone does not have a Will already or if they had previously gifted a property in a Will which has subsequently been sold to pay for care home fees or if they have had no contact with any of the named beneficiaries for many years.
Where all parties are in agreement applications are made without the need for any Court hearings. However, those materially affected by the new Will need to be given notice of the application giving them the opportunity to raise objections if necessary. These cases can therefore become contentious even when this is not anticipated at the outset.
Public Guardian v Marvin  EWCOP 47 - In this case, acted for the Respondent who was the appointed Health and Welfare and Property and Finances Attorney for his Father. Social Services reported our client to the Office of the Public Guardian as they alleged that he was not acting in his Father’s best interests in managing his financial affairs and making decisions regarding his health and welfare. The Office of the Public Guardian were trying to revoke the Powers of Attorney and appoint an independent Deputy.
We argued that whilst the Respondent had not technically had the power to act in the way that he did, this was not done maliciously and nor did the Respondent receive any personal gain from his actions. This argument was accepted by the Court and the judge allowed the Health and Welfare Lasting Power of Attorney to continue. He also accepted our request that the Respondent be appointed a Deputy jointly with a partner of McMillan Williams Solicitors Limited and indeed, we are appointed Deputy for many individuals.
We Can Help
At MW, our mission is "To make quality legal services accessible to everyone", including those who need to take their case to the Court of Protection. Our specialist Team of Inheritance Dispute Solicitors have experience dealing with all aspects of inheritance disputes and are here to give you the legal advice you deserve.