Court of Protection
The Court of Protection is able to make decisions in relation to the property and affairs and healthcare and personal welfare of adults (and children in a few cases) who lack mental capacity. The Court also has the power to make declarations about whether someone has the mental capacity to make a particular decision.
The Court has the same powers, rights, privileges and authority in relation to mental capacity matters as the High Court.
The Court of Protection has the powers to:
- Decide whether a person has capacity to make a particular decision for themselves
- Make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions
- Appoint deputies to make decisions for people lacking capacity to make those decisions
- Decide whether an LPA or EPA is valid
- Remove deputies or attorneys who fail to carry out their duties
- Hear cases concerning objections to register an LPA or EPA and make decisions about whether or not an LPA or EPA is valid
In reaching any decision, the Court must apply the statutory principles set out in the Mental Capacity Act. It must also make sure its decision is in the best interests of the person who lacks capacity.
The cases that we most usually see in this area of work involve people who for whatever reason did not make an Enduring or Lasting Power of Attorney and have now lost the capacity to make such powers. If they are incapable of managing their own affairs or make decisions then the only way that a family member or loved one can make such decisions is once they have been appointed as a “Deputy” which essentially gives that person the same responsibilities and rights as an attorney would receive under an Enduring or Lasting Power.
We also see cases where a family has a child born with a disability such that the Mental Capacity Act applies. Whilst that person is a child the parents can make the decisions and deal with the child’s finances. However, once that child turns 18 the parent’s situation changes. They can only continue to manage their child’s affairs so long as there is a Deputyship order in place. Occasionally we are consulted by people who are concerned that the attorney is either failing to meet their obligations or is exercising their powers improperly. In such cases we are able to advise the avenues available and if necessary draft proceedings to apply for the deputy or attorney to be replaced or removed.
Wills started as and remain the core of our business. There are situations where we would advise a client to re-write their will or add a codicil but are faced with the problem that the client has lost capacity to make a will. The reasons for needing to make the changes are normally financial (usually for taxation purposes). However, if the Testator lacks capacity then they cannot make a will. In such situations it is usual to consider a Statutory Will, whereby an application is made to the Court of Protection to either write a will or alter / replace an existing will. In such cases the Court will consider the application and the effects of the proposed will and may consent to the will being written on the incapable testator’s behalf.