The Court of Protection

What is the Court of Protection?

This Court is a specialist Court for all issues relating to people who lack capacity to make specific decisions.  The Court makes decisions and appoints Deputies to make decisions in the best interests of those who lack capacity to do so.

The Mental Capacity Act 2005

This Act protects and empowers people who lack capacity due to reasons such as dementia, stroke, disability, mental health or head injury.  The Act sets out how decisions can be made on behalf of those who lack mental capacity.

Do I need to make an application to the Court of Protection?

If there is a valid Lasting Power of Attorney or Enduring Power of Attorney in place an application may not need to be made unless a specific decision needs to be made which is not covered by the authority conferred by either of these Powers

An Order of the Court will usually be necessary for matters relating to the property and affairs of people who lack capacity to make specific financial decisions for themselves.

Section 5 of the Mental Capacity Act provides protection for carers, health care and social care staff to carry out certain tasks without fear of liability including personal care or treatment of people who lack capacity to consent to them.  There are important limitations on such acts that can be carried out including instances whereby a person who lacks capacity is deprived of their liberty or if there is inappropriate use of restraint. The Act will enable a person to take action or make a decision in the best interests of someone who lacks capacity.

If informal decision making is not appropriate an application to the Court of Protection is necessary e.g in situations where on-going personal welfare decisions must be made about someone who lacks capacity, where disagreements cannot be resolved or if there is a particularly difficult decision to be made

What type of decisions can the Court make? 

Under the Mental Capacity Act the Court has the power to:-

Make decisions about the personal welfare or property and affairs of people who lack the capacity to make such decisions themselves

Make declarations about a person’s capacity to make a decision, if the matter of whether they can make a decision cannot be resolved informally

Make decisions in relation to serious medical treatment cases, which relate to providing, withdrawing or withholding treatment to a person who lacks capacity

Appoint a Deputy to make on-going decisions on behalf of a person who lacks capacity, in relation to either the person’s personal welfare or property and affairs

Make decisions about Lasting Powers of Attorney or Enduring Powers of Attorney including whether the Power is valid, objections to registration, scope of the Attorney’s powers and removal of the Attorney’s powers

How is the Court of Protection related to the Office of the Public Guardian? 

The Public Guardian (supported by the Office of the Public Guardian) is responsible under the Mental Capacity Act for:-

Supervising Deputies

Keeping registers of Deputies, Lasting Powers of Attorney and Enduring Powers of Attorney and

 Investigating any complaints about Attorneys or Deputies

How do I make a Court application? 

You may wish to appoint a Solicitor to assist you with any application to the Court of Protection and if so, we will be able to assist you.  If you require any further information please contact our Court of Protection team at 020 8290 0440 or clientservices@thackraywilliams.com Alternatively you may consider making the application to the Court yourself in which case further information can be found on the website www.direct.gov.uk or www.justice.gov.uk.