The Court of Protection is a specialist court located in London, established under the Mental Capacity Act of 2005. Given the rise in mental health issues, including conditions like dementia, its role has become increasingly crucial.
What Does the Court of Protection Do?
The Court of Protection’s primary function is to determine whether an individual has the mental capacity to make specific decisions for themselves, particularly when there is doubt and no alternative arrangements, such as a Lasting Power of Attorney (LPA), are in place.
The Court has authority over decisions relating to finances, property, health, and welfare. Its responsibilities include:
- Resolving disputes about mental capacity that cannot be settled elsewhere
- Appointing a Deputy to act on behalf of someone who lacks capacity
- Authorising the sale or purchase of property
- Granting permission for one-off decisions, such as making a medical or financial choice
- Handling urgent applications where immediate decisions are needed for someone who cannot decide for themselves
- Considering requests to make statutory wills or gifts
- Deciding whether someone can be deprived of their liberty under the Mental Capacity Act
- Reviewing the validity or registration of a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA)
- Making urgent decisions regarding healthcare or personal care when no Deputy or Power of Attorney is in place
What is a Court of Protection Deputy?
If the Court determines that a person is unable to make decisions due to a lack of mental capacity, it can appoint someone to act on their behalf by granting them Deputyship.
There are two types of Deputyship: one for managing financial and property affairs, and another for making decisions related to health and welfare.
A financial Deputy must ensure the vulnerable person’s funds are kept entirely separate from their own and must maintain accurate records of all decisions made. A report detailing the Deputy’s actions must be submitted to the Court every year.
What Happens If There Is a Dispute?
An application to the Court of Protection may be necessary if there is a significant disagreement regarding decisions for someone who lacks capacity, and attempts at resolution have failed. This might involve decisions about where the person should live or who they should have contact with. In such cases, a family member or the person themselves may have strong opinions about what is in the best interest of the individual.
If the application involves Deputyship or a statutory will and all parties agree, a decision can be made based on written evidence, without the need for a full hearing. However, if there is opposition, a hearing will be required. Hearings are private, and only those directly involved in the application, including relevant family members, can attend.
