Court of Protection: Helpful Guide

Dealing with legal issues around mental capacity can be incredibly challenging and emotionally overwhelming. 

The Court of Protection helps protect the rights and well-being of those who can't make certain decisions for themselves. This specialist court can make decisions about property, finances, health, and welfare for individuals who lack mental capacity (for example, those who have severe dementia, learning disabilities, or cognitive issues due to a serious brain injury or stroke).

Whether you’re a family member, friend, or professional acting on behalf of someone who lacks mental capacity, understanding how the Court of Protection operates is incredibly important. 

This guide aims to provide you with a comprehensive overview of the Court of Protection, including its functions, powers, and the processes involved, to help prepare and inform you about this complex area of the legal system.

If you need personalised advice or assistance with Court of Protection matters, the expert family law solicitors at GloverPriest are here to help. Contact us today for transparent, friendly, and professional legal support.

What is the Court of Protection?

Operating under the Mental Capacity Act 2005, the Court of Protection was established to oversee the personal welfare, health, and financial affairs of individuals who cannot make these important decisions for themselves.

This specialist UK court always prioritises the best interests of the individual in question, providing a legal framework to protect their rights and overall well-being.

The Court of Protection is based in London and handles most cases with the expertise of district judges and a senior judge. To make sure this expert legal support is accessible to everyone across the country, some cases can be transferred to local courts for hearing, making it more convenient for those involved.

What Does the Court of Protection Do?

The Court of Protection has a range of responsibilities, but its priority is always to safeguard the rights and well-being of individuals who lack mental capacity. Here’s a detailed explanation of its key functions and some examples of the decisions it can make:

Detailed Explanation of Responsibilities of the Court of Protection

1. Appointing Deputies: One of the primary roles of the Court is to appoint deputies. Deputies are individuals or professionals who are given the authority to make decisions on behalf of someone who lacks capacity. Depending on the deputyship granted, they can make decisions about property and finances or health and welfare (though, in some cases, deputies may be granted the power to manage both).
2. Making One-off Decisions: Sometimes, a specific decision needs to be made that does not require ongoing management. The Court can step in to make one-off decisions, such as consenting to medical treatments or deciding where a person should live.
3. Handling Urgent Applications: In cases where immediate decisions are necessary to protect an individual’s welfare or assets, the Court can issue urgent or interim orders. These are temporary measures taken until a full hearing can be conducted.
4. Managing Financial Affairs: The Court can take control of financial matters, ensuring that bills are paid, investments are managed, and properties are bought or sold as needed. This is especially important for individuals who have a large amount of assets but aren’t well enough to manage them.
5. Health and Welfare Decisions: The Court can make decisions about a person’s care, including medical treatments and living arrangements. This is to make sure all actions taken are in the best interests of the person involved.
6. Statutory Wills: If an individual is unable to create or amend their will due to lack of capacity, the Court can do so on their behalf through the creation of a Statutory Will. This ensures that the person’s estate is managed according to their best interests and existing wishes as much as possible.

Examples of Decisions made by the Court of Protection

• Appointing a Deputy: For instance, the Court might appoint a family member as a deputy to manage the finances of an elderly relative who has dementia.
• Urgent Health Decisions: If someone requires urgent medical treatment but cannot consent, the Court can decide to proceed with the treatment on their behalf.
• Financial Management: The Court might decide to sell a property belonging to someone who cannot make decisions to ensure their care costs are covered.

What the Court of Protection Does Not Have the Power to Do

While the Court of Protection has broad authority, there are some limitations to what they’re able to enforce. Understanding these boundaries will help you better manage your expectations and even help clarify when other legal avenues may have to be explored.

Limitations to the Court of Protection's Powers

1. Personal Preferences: The Court cannot make decisions based purely on personal preferences if they do not align with the individual's best interests. For example, it can't enforce preferred living arrangements if it has the potential to be a risk to an individual’s health or safety.
2. Non-Intervention in Certain Family Matters: The Court of Protection, generally, will not get involved in private family matters unless there is a direct link to an individual's mental capacity. Things like custody disputes, for example, are outside of its jurisdiction unless there is a clear correlation between the issue and a person’s capacity.
3. Criminal Matters: The Court of Protection does not handle criminal cases. Any matters related to criminal offences will be handled by the appropriate criminal courts.
4. Enforcing Contracts: Unless there is clear evidence of fraud or ‘undue influence’ (i.e. coercion), the Court cannot enforce or void contracts that were entered into by somebody before they lost capacity.
5. Changing Lasting Powers of Attorney: The Court cannot change a Lasting Power of Attorney unless there is clear evidence that the attorney is not acting in the best interest of the individual.

Scenarios Where the Court of Protection Cannot Intervene

• Personal Wishes vs. Best Interests: If a person who lacks mental capacity wants to continue living in their home but it’s deemed too unsafe for them, the Court will prioritise their safety over their wishes.
• Family Disputes Not Related to Capacity: If a father is trying to gain sole custody via a Child Arrangement Order because the mother isn’t properly looking after their child, the Court of Protection wouldn’t intervene unless the mother lacks the mental capacity needed to provide proper care.
• Pre-Existing Contracts: The Court can’t alter agreements made before the loss of capacity unless there are grounds for contesting the contract, such as the individual wasn’t of sound mind when they entered into the contract and were coerced by a partner.

Court of Protection Deputyship

What is Deputyship?

Deputyship involves appointing a responsible person to make decisions on behalf of someone who lacks mental capacity. Deputies are usually family members or friends, but can also be professionals.

Types of Deputies

There are two types of deputyship that the Court of Protection can grant:

• Property and Affairs: Manage financial matters, such as paying bills, handling bank accounts, and making investments.
• Personal Welfare: Make decisions about health and welfare, including medical treatments and living arrangements.

How to Become a Deputy

To become a deputy, you need to apply to the Court of Protection directly (though this can be done with the help of a solicitor). The process includes submitting various forms and supporting documents, such as medical evidence of the person’s mental capacity. The Court will then assess the application and may conduct interviews before making a decision.

How Long Does it Take to Get a Deputyship Order UK?

The time it takes to get a deputyship order can vary. On average, it takes around 4 to 6 months, but urgent cases can sometimes be moved along more quickly. The timeline generally depends on factors like the complexity of the case and how much information was given in the application.

Responsibilities of a Court of Protection Deputy

Deputies are responsible for making decisions in the best interests of the person they are appointed to help. They must follow the principles set out in the Mental Capacity Act 2005.

Challenges and Support

Being a deputy can be challenging due to the responsibilities and legal requirements involved. Working with experienced solicitors, like those at GloverPriest, can help manage these challenges effectively. Our family law and Wills, Trusts and LPA solicitors can provide guidance throughout the application process and offer ongoing support to ensure compliance with legal obligations.

Statutory Wills in the Court of Protection

What is a Statutory Will?

A Statutory Will is a Will made on behalf of someone who lacks the mental capacity to create or amend their own will. This makes sure that their estate is distributed according to their existing wishes as much as possible, along with making considerations regarding their best interest.

When is a Statutory Will Needed?

Statutory Wills are necessary when an individual does not have a valid Will or when their current will is outdated or no longer reflects their final wishes. This can happen due to changes in their personal circumstances or finances that they can no longer manage due to lack of capacity.

How to Apply for a Statutory Will

Applying for a statutory Will involves applying to the Court of Protection. This includes providing evidence of the individual’s lack of capacity and a draft of the proposed will. The Court will review the application, often involving an investigation and sometimes a hearing, before making a decision.

Benefits of a Statutory Will

Creating a statutory Will ensures that the individual’s assets are managed and distributed in a way that aligns with their best interests. This can prevent potential disputes among family members and ensure that loved ones are provided for according to the individual's wishes.

Challenges and Support

The process of creating a statutory Will can be complex and time-consuming. More experienced solicitors, such as those at GloverPriest, can make sure all the legal requirements are met and ensure that the application is thorough and contains all the right and necessary evidence.

Court of Protection Fees

There are many different fees that may be invoked when dealing with the Court of Protection, and this will vary depending on the nature of the application and the complexity of the case. Fees you should be prepared for might include:

1. Application Fees: There is a standard fee for submitting an application to the Court. This fee covers the administrative costs of processing the application.
2. Hearing Fees: If your case requires a hearing, there will be additional fees to cover the costs associated with arranging and conducting the hearing.
3. Annual Supervision Fees: For deputies, there are annual supervision fees. These fees vary depending on the level of supervision required, which is determined by the Court.
4. Professional Deputy Fees: If a professional, such as a solicitor or medical professional, is appointed as a deputy, they may decide to charge for their time and services. These fees are typically charged on an hourly basis and must be approved by the Court.

Additional Court of Protection Costs

• Medical Reports: There is often a cost for obtaining medical evidence to support the application. This is usually at the discretion of the surgery or hospital - some may decide not to charge a fee at all, while others will have a standard fee for the medical professional’s time or to cover printing and administration costs.
• Legal Fees: If you choose to instruct a solicitor to help with the application process, there will be legal fees. These can vary based on the solicitor’s rates and the complexity of the case.

Exemptions and Remissions

In some cases, you may be eligible for fee exemptions or remissions based on your financial circumstances. The UK Government portal provides guidance on how to apply for these exemptions

How to Contact the Court of Protection

Getting in touch with the Court of Protection is straightforward, but it requires some preparation to make sure your queries and applications are processed efficiently. Here’s a step-by-step guide on how to contact the Court and what information you will need.

Court of Protection Contact Details

• Address: The Court of Protection is based in London. The full postal address is: Court of Protection
  PO Box 70185
  First Avenue House
  42-49 High Holborn
  London
  WC1A 9JA
• Telephone: You can reach the Court of Protection by phone at 0300 456 4600 for general enquiries. The lines are open Monday to Friday, from 9 am to 5 pm.
• Email: For general enquiries, you can email the Court at [email protected].

Necessary Documents and Forms

When contacting the Court of Protection, it's wise to have all relevant documents and forms prepared in advance. This will help get your enquiry or application to the right department, and speed things along. Common documents include:

• Application Forms: Depending on your needs, different forms are required. For example, form COP1 for applications related to property and financial affairs, or form COP1A for health and welfare applications.
• Medical Evidence: This may be required to support applications concerning the individual's mental capacity.
• Supporting Documents: Any additional documents that can support your case, such as financial statements or care plans.

Process for Getting in Touch

1. Prepare Your Documents: Ensure all necessary forms and supporting documents are completed and ready. You should also seek advice on whether the Court requires original documents or not.
2. Choose Your Method of Contact: Decide whether to contact the Court by post, telephone, or email.
3. Submit Your Enquiry or Application: Send your documents via the chosen method. If posting, consider using recorded delivery so you can track its arrival.

Importance of Expert Legal Assistance

Working with an expert family law solicitor, like those at GloverPriest, can be invaluable in this process. They can help gather the necessary documents and evidence, and ensure that applications are correctly completed and submitted, increasing the likelihood of a smooth and successful outcome.

How Long Does the Court of Protection Take?

The time it takes for the Court of Protection to process applications can vary based on several factors, including the complexity of the case and the type of application submitted. Here’s an overview of typical timelines and influencing factors.

Typical Timelines

1. Standard Applications: For routine matters, such as appointing a deputy or managing financial affairs, the process usually takes between 4 to 6 months from submission to resolution.
2. Urgent Applications: In cases requiring immediate attention, such as urgent medical treatment or emergency financial decisions, the Court can issue interim orders much more quickly, often within a few days to a couple of weeks.
3. Complex Cases: For more complicated matters involving significant assets or intricate health and welfare decisions, the process can take longer, sometimes up to a year or more.

Factors Influencing Duration

• Completeness of Application: Applications that are thoroughly completed with all necessary documents and evidence can be processed more quickly.
• Court Caseload: The current workload of the Court can affect processing times, with busier periods leading to longer wait times.
• Type of Application: Certain applications, such as those involving contested decisions or requiring detailed investigations, naturally take longer to resolve.

Importance of Expert Legal Assistance

Working with an experienced family law solicitor, like those at GloverPriest, can help streamline the process. They can ensure that your application is complete and well-documented, potentially reducing the time it takes to get a decision from the Court.

Benefits of Using the Court of Protection

The Court of Protection offers several advantages for individuals who lack the mental capacity to make their own decisions. Here’s a look at some of the key benefits:

Protecting Interests

The primary role of the Court of Protection is to safeguard the rights and interests of vulnerable individuals. By making informed decisions on their behalf, the Court ensures that their personal and financial well-being is protected.

Legal Framework

Operating under the Mental Capacity Act 2005, the Court provides a clear legal framework for making decisions. This helps avoid potential disputes among family members and ensures that decisions are made consistently and fairly.

Appointing Deputies

One significant benefit is the ability to appoint deputies. These are trusted individuals, often family members or close friends, who can make ongoing decisions about the person’s welfare and finances. This provides a structured and reliable support system for the individual.

Urgent and Interim Decisions

The Court can make urgent decisions in situations where immediate action is required to protect an individual’s health or finances. This ensures timely intervention in critical circumstances.

Statutory Wills

For individuals who cannot create or amend their wills due to lack of capacity, the Court can step in to draft or modify a will that reflects their best interests. This helps ensure that their estate is handled according to their wishes as much as possible.

Positive Outcomes

Examples of successful interventions by the Court include cases where timely medical treatment was authorised, preventing serious health complications, and instances where financial mismanagement was rectified, preserving the individual's assets.

Risks and Challenges

While the Court of Protection offers many benefits, there are also potential risks and challenges that individuals and families should be aware of.

Potential Drawbacks

1. Cost: Engaging with the Court can be expensive. There are application fees, legal fees, and potential costs for ongoing deputyship. These can quickly add up, especially for complex cases.
2. Time-Consuming: The process can be lengthy, particularly for complicated cases. Delays can occur due to the Court’s caseload or the need for detailed investigations, which can be stressful for families waiting for decisions.
3. Emotional Strain: Navigating the legal system can be emotionally taxing for families, especially when making decisions about a loved one’s health and welfare.
4. Potential for Disputes: In some cases, disagreements may arise among family members or between deputies and the Court. These disputes can further delay proceedings and increase emotional and financial costs.

Challenges for Families and Deputies

• Understanding Legal Requirements: The legal requirements and procedures can be complex. Without expert guidance, there’s a risk of submitting incomplete or incorrect applications, leading to further delays.
• Ongoing Responsibilities: Deputies appointed by the Court have ongoing responsibilities, which can be demanding and require careful management. They must regularly report to the Court and ensure all decisions are in the best interest of the individual.
• Maintaining Best Interests: Ensuring that every decision made is in the best interests of the person who lacks capacity can be challenging, particularly in complex financial or health matters.

Conclusion

The Court of Protection is an essential institution for safeguarding the rights and well-being of individuals who lack mental capacity. It plays a crucial role in managing their health, welfare, and financial affairs, ensuring decisions are made in their best interests. 

While engaging with the Court can be difficult, particularly emotionally when it comes to the best interests of loved ones, the benefits of having a structured legal framework are very much worth it.

How GloverPriest Can Help

For personalised advice and support, working with experienced solicitors can make a substantial difference.

At GloverPriest, our expert Family Law and Wills, Trusts and LPA solicitors can guide you through the process and help you reach an outcome that’s beneficial for both you and the individual involved. Contact GloverPriest today for expert legal assistance.