News & events
16/08/2012 - The Court of Protections - Q and As
The Court of Protection is a specialist court with the power to make decisions on behalf of individuals who lack the mental capacity to make their own decisions. This Q & A section will consider in greater detail the Court's role.
What does it mean when a person lacks mental capacity?
Mental capacity is the ability to make a decision, ranging from day-to-day decisions such as what to have for lunch, to more important issues, for example, about medical treatment. A person will be found to lack capacity if they are unable to make a particular decision at the time it needs to be made, because of an "impairment of, or disturbance in the functioning of, the mind or brain”.
What does the Court of Protection do?
The Court of Protection makes decisions in the best interests of a person who lacks the mental capacity to make such decisions themselves.
If a person lacks capacity, someone else may be able to make decisions on their behalf. This may be an attorney appointed under either an Enduring Power of Attorney (EPA) or a Lasting Power of Attorney (LPA) prepared before the person in question lost capacity. The Court of Protection deals with objections to the registration of EPAs and LPAs and applications to cancel or revoke them once registered.
Where there is no EPA or LPA the Court of Protection may make specific decisions on behalf of a person who lacks capacity, for example, whether to consent to medical treatment. You may have seen the recent high profile case of E, an anorexic woman whose local authority successfully obtained an order permitting them to force feed her.
Alternatively, the court can appoint a deputy to manage an individual's property and affairs or their personal welfare. The court also has the power to make a statutory will.
What is a deputy?
The court has the power to make specific decisions for an individual. However, this will not always be appropriate; for example, if a number of future decisions will need to be made in relation to that person's care. The court can instead appoint someone to act as the individual's deputy in order to manage their affairs. A deputy may be a family member, trusted friend or professional advisor. The court can appoint a deputy in relation to an individual's property and affairs or, more unusually, their personal welfare. The court order will set out the action that may be taken by the deputy.
What does it mean when the court refers to "property and affairs” or "personal welfare”?
A person can make an LPA allowing their chosen attorney to look after their property and affairs, personal welfare, or both. The court can appoint a deputy to look after one or other of these aspects. "Property and affairs” includes a person's property, such as their home and their personal possessions and also includes their financial arrangements. "Personal welfare” includes decisions about a person's health care, or general care, such as where the person is to live.
What is a statutory will?
The court may order the execution of a will on behalf of a person who does not have capacity to make a will themselves. This might be of assistance where the person's will is out of date, or was prepared some years earlier during a family dispute, excluding a particular relative. The parties may have since been reconciled, but the individual may not have updated his/her will to include this relative.
The Contentious Trust and Probate team
are experienced in making and defending applications to the Court of Protection, and can provide you with specialist advice in connection with Court of Protection applications.