Court of Protection
What is the Court of Protection?
The Court of Protection is a specific Court responsible for making orders and directions in respect of persons who lack the capacity to make specific decisions for themselves.
The court makes decisions about people’s property and affairs (financial matters) and their health and welfare.
Most applications to the Court of Protection are generally made on a paper application without the need for court attendance. However contentious applications will be held in public, with reporting restrictions under the Transparency practice direction and order.
When would you apply to the Court of Protection?
You may be facing a situation where a loved one is unable to make decisions for themselves on a specific matter or series of matters. Most situations tend to be around decision making as to someone’s financial affairs. As the law stands, without some form of legal authority, nobody can undertake and assist with the management of another person’s affairs.
If the person losing capacity had already created a Power of Attorney document such as an Enduring Power of Attorney (EPA) or Lasting Power of Attorney (LPA) and as long as this document is registered with The Office of the Public Guardian (OPG), the attorneys will have the legal right to manage their affairs, without the need to approach the Court of Protection. However, the Court of Protection has jurisdiction to consider disputes with powers of attorney.
If your loved one had not created a valid legal document before losing capacity, then it may well be that your only option is a Court of Protection application in order to be granted the authority for you to be able to act on their behalf.
The Court of Protection’s remit is to give ‘directions’ and issue ‘orders’ for third parties to undertake specific actions or decisions for a person who has lost capacity and who is unable to make those decisions for themselves.
Why would I need a court of protection lawyer?
Applications to the Court of Protection can be a complex area of law and it is important before considering taking on the role of a Deputy under a Court Order, that the applicant considers the implications of the regulations and duties which the Court requires the applicant to undertake when acting for a person that is unable to make decisions for themselves.
It is important to seek legal advice before making an application to ascertain whether the matter has the potential to be contentious and what the implications of that happening are likely to be.
The Court of Protection will consider the application on the best interests of the protected party and there are certain specific procedures that are required to be processed, before a person is appointed as a Deputy. A specialist SFE lawyer can guide you through each stage of the Court of Protection process.
Once appointed, your legal adviser will be able to assist you with the Deputyship requirements from appointment, including decision making under the Mental Capacity Act 2005, regulation, OPG requirements and reporting.