The Court of Protection may be required to act if a family member or close friend loses the ability to make decisions for themselves, possibly due to dementia, a serious illness, or a brain injury. Individuals who are no longer competent to make their own decisions regarding their finances or wellbeing may be subject to decisions by the Court of Protection. Typically, the intervention of the Court of Protection is required because the individual lacks a Lasting Power of Attorney or cannot agree on what is in their best interests.
The Court of Protection has the authority to issue numerous Orders in the best interests of a person who lacks the mental capacity to make their own decisions. These can be declarations regarding whether or not a person lacks the competence to handle a certain subject, one-time decisions on a specific matter, or Orders appointing a Deputy to make decisions on the incapacitated person’s behalf.
In this article, what is a court of protection order, we take a look at these issues in more depth.
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What is the Court of Protection?
The Court of Protection is a court that handles decisions and actions performed in accordance with the Mental Capacity Act. If someone needs the Court’s permission to make decisions regarding your health, welfare, finances, or property, you or someone assisting you would need to petition to the Court.
The Court can make decisions about:
- Whether an action to be taken on your behalf is suitable when you lack the capacity to take it yourself — the court can assess whether they believe you have the mental capacity to make a particular decision or whether something is in your best interests.
- Disputes that cannot be resolved in any other manner, such as by hiring an independent advocate for mental competence.
- Situations in which multiple decisions, rather than a single one, must be made on your behalf.
- Disputes over an authorization for the deprivation of liberty safeguards or their usage.
- Removing an attorney or deputy under a lasting power of attorney.
- Your healthcare or personal care, in the absence of an attorney or deputy.
- Whether an advance decision or Lasting Power of Attorney is lawful, or if there is debate regarding its meaning.
- Whether a deprivation of liberty safeguards authorization was legitimately issued or resolving a disagreement on the use of safeguards against you.
When making decisions on your behalf, the Court must always act in your best interest.
Court of Protection Deputy Orders
There are two types of Deputy Orders that can be issued by the Court of Protection:
- Property and Financial Affairs Deputyship Orders: These authorise someone to manage or take charge of an incapacitated person’s financial affairs, ranging from mundane matters such as paying the vulnerable person’s bills and managing their pension to more complex matters such as buying, selling, and adapting properties; investing large sums of money; and regularly reviewing the health of portfolios and arranging care packages.
- Personal Welfare Deputyship Orders: These orders authorise a person to make important health and welfare choices, ranging from discussing treatment with doctors and deciding whether to continue life-sustaining care to deciding where the incapacitated person should live.
In general, the Court of Protection handles financial and property cases differently than health and welfare problems. If a person lacks the mental capacity to manage his or her financial affairs, the court will normally grant applications to appoint a Deputy to make decisions that the incapacitated person is unable to make.
Nevertheless, the Court of Protection is far more cautious about appointing a Personal Welfare Deputy. When a person lacks the capacity to make their own welfare decisions, and there is a dispute between family, friends, and public bodies such as the Local Authorities or NHS Trust over what is best for them, the Court of Protection will typically issue a one-time Order addressing the specific issues at hand.
Allowing decision-making by just one person on a particular problem is a serious order with far-reaching repercussions. Instead of appointing a Deputy to make decisions, the law prefers that the Court of Protection make singular judgements on specific cases. In the majority of property matters, there will be a succession of ongoing decisions.
What if I disagree with the ruling of the Court?
You may be able to appeal a Court of Protection ruling to the Court of Appeal; but, you may require permission to do so. If you wish to contest a ruling, you should consult with a Court of Protection-specialized solicitor.
Can anyone apply to the court of protection?
Yes, anyone can apply.
If you have a question that the Court has the authority to decide, you may file a petition. You do not need authorization to do this if you are the subject of the court’s ruling and you are over the age of 18. If you are under 18, your legal guardian would apply, and they might do so without your permission.
Without authorization, your solicitor, deputy, or anyone designated in a court order pertaining to the subject could also apply. Family members, hospital trusts, Clinical Commissioning Groups, and local councils may also apply, but only with Court approval.
If someone takes a legal action on your behalf to the Court of Protection due to your lack of ability, you should still be included. You will be required to hire a solicitor, but if you are unable to do so, the court may appoint a representative on your behalf.
How we can help
We have a proven track-record of helping clients with court of protection orders. We will guide you through the process and ensure all checks are carried out swiftly and efficiently and we firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.
How to Contact our Corporate Solicitors
It is important for you to be well informed about the issues and obstacles you are facing. However, expert legal support is crucial in terms of saving you money and ensuring you achieve a positive outcome.
To speak to a member of our new enquiries team today, simply call us on 0345 901 0445 or click here to make a free enquiry . We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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