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Powers of Attorney and Court of Protection

Application to 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 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.

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, healthcare 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 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.