Court Of Protection Litigation

What is the Court of Protection?

The Court of Protection was created by the Mental Capacity Act 2005. The Court makes decisions regarding the property, financial affairs and personal welfare of people who cannot make these decisions for themselves because they “lack mental capacity”. The individual who lacks capacity may be referred to as “P” (the protected person) or “D” (the donor) or the “adult at risk” because their lack of capacity puts them at risk of abuse, whether physical, emotional or financial.

It may be useful to refer to our list of Abbreviations Used in Community Care Law and Abbreviations Used in SEN and Disability Law.

What kinds of decisions are made by the Court of Protection?

The Court has a wide remit to make decisions about health and welfare and financial issues. Common examples include:

• Determining capacity: deciding whether someone has the mental capacity to make a decision themselves
• Authorising a Deprivation of Liberty: deciding whether an individual can be deprived of their liberty under the Mental Capacity Act 2005.
• Making Best Interest decisions: such as where the adult should live and be cared for, their living arrangements, contact with other people, or what treatment they should receive
• Appointing Deputies to make decisions for people who lack mental capacity
• Attorney Decisions:
  • Whether to register or revoke an Enduring Power of Attorney (EPA) or Lasting Power of Attorney (LPA)
  • Considering objections against the registration of an EPA or LPA
  • Deciding whether an attorney acting under an existing EPA or LPA should be removed, for example where there has been financial abuse or mismanagement

How can the Court of Protection help you or someone you love?

Challenging Decisions

An application to the Court of Protection can be made to challenge decisions relating to the mental capacity or Best Interests of a relative or to safeguard your loved one against financial abuse, physical or emotional harm. Court applications often deal with difficult decisions about the care and living arrangements for people who need care at home or residential care.

Where a LA or ICB is refusing to consider an option that the family or loved one has put forward, the Court can put pressure on an organisation by enquiring why an option is not on offer.

Many cases which go to the Court of Protection involve differing opinions about what is in the best interests of the individual concerned. In such cases it has not been possible for family members and Health or Social Services to reach an agreement, so the Court of Protection is asked to weigh up all the information and opinions available about what is in the best interest of the adult at risk and make a decision.

Deprivation of Liberty Challenges

Where an individual who lacks capacity to make decisions about where they should live, is not “free to leave” their living arrangements; and their care arrangements result in them being under “continuous supervision and control”, this amounts of a Deprivation of their Liberty.  A person who is being deprived of their liberty is able to challenge this at the Court of Protection.

Appointing Deputies / Removing Attorneys

The Court could also be asked to decide whether an Attorney is unfit to continue to act or if an EPA or LPA should be revoked and a Deputy appointed in their place.

For help with Court of Protection issues and with making a deputyship application, contact our health and social care solicitors today on 01273 609911, or email info@ms-solicitors.co.uk.