Court of Protection Advice
What is The Court of Protection?
The Court of Protection is when the Court becomes involved to make decisions, when there is a dispute about what is the in the best interests of someone who does not have the mental capacity to manage their own property and affairs, or decisions around their welfare. These individuals may lack capacity as a result of an impairment, such as dementia, a learning disability or a brain injury.
The court then gives these powers to others via a Lasting Power of Attorney so they can make legal decisions for that person or manage their financial affairs if they are no longer able to do this for themselves. Once the court has awarded a Court of Protection, this person is known as a ‘Deputy’. This can be a solicitor, a friends, a member of the family, who makes decisions or takes actions under the Mental Capacity Act, about the persons health, welfare or any financial / personal affairs they no longer have the capacity to do so themselves.
Anyone can apply to the Court of Protection. If you are under 18, your legal guardian would apply for you, and can apply without your permission. Your attorney, deputy or anyone named in a court order relative to your matter can also apply without asking for your permission. Family members, your healthcare trust and local authorities can also apply on your behalf; however they would require your permission to do so.
The Mental Capacity Act 2005 sets out how decisions are to be made on behalf of someone who lacks capacity. The test to be considered when deciding whether someone lacks the capacity to make any specific decision is:
- Are they able to understand the information relevant to the decision they are being asked to make?
- Are they able to retain the relevant information?
- Are they able to weigh up the information to help them come to a decision?
- Are they able to communicate their decision? This can be though non-verbal communication, as well as verbal.
Our solicitors at Watson Woodhouse can assist with Court of Protection matters involving welfare matters which may include:
- Issues around medical treatment
- Sexual relations and marriage
- Where someone should live
- The care someone may receive
- Contact with others
Legal aid is available in such cases subject to eligibility.
We also assist in cases involving a deprivation of liberty (DOLS). This authorisation can be put in place when someone is being deprived of their liberty and don’t have the mental capacity to consent to this. For example, if someone living in a care home is not free to leave and require supervision, but they object to their living arrangements, a challenge can be made to the Court of Protection to consider what is in the best interests of that person.
The challenge may be brought on behalf of the person who lacks capacity by a family member. They will have someone in placed called their RPR (Relevant Person’s Representative) who may be a family member or professional who will bring the challenge on the person’s behalf. Non-means tested legal aid is available if you are bringing an application on behalf of the person who lacks capacity.
Our Court of Protection team at Watson Woodhouse are often instructed by family members and on behalf of the person who lacks capacity, whether that is through a family member, a paid representative/advocate, or the Official Solicitor.
At Watson Woodhouse, we want to reassure you that we have the your needs at the forefront of our priorities and will do all we can to ensure the process is as straight forward as possible, but also with your best interests at heart.
We have a Mental Health contract in place to allow us to represent those who need us the most. We also work with Citizen’s Advice Bureau and charities such as Mind to ensure that we are able to assist people in the most effective way possible.
If you would like to speak to a member of our court of protection team, contact us today on 01642 247656 for more information.
Why use a solicitor?
- The process can be complex and requires a solicitor
- A solicitor will be able to represent you in court
- They will be able to communicate with all involved parties
- A solicitor will ensure your case is completely confidential
Why Watson Woodhouse?
- Our solicitors have a vast amount of experience in this area
- We will ensure we treat your case with the sensitivity it deserves
- We will seek to progress your matter quickly, with as little distress as possible for you
- We will treat your case with the utmost confidentiality