Factsheet: Court of Protection

1. What is the Court of Protection?
2. What can the Court of Protection do?
3. Why do you need the Court of Protection?
4. Do you need to attend Court?

What is the Court of Protection?

The Court of Protection was established by the Mental Capacity Act (2005). The Court has jurisdiction over the property, financial affairs, personal welfare and healthcare of people who lack mental capacity to make decisions for themselves.

The Court of Protection is different to the Office of the Public Guardian but the two work closely. Essentially, the Court of Protection makes the decisions and the Office of the Public Guardian handles the ongoing supervision of Deputies.

The purpose of the Office of the Public Guardian and the Court of Protection is to protect vulnerable people, make sure their affairs are properly looked after so that no-one takes advantage of them.

What can the Court of Protection do?

The Court’s powers are governed by the Mental Capacity Act 2005 but the Court may also exercise its inherent jurisdiction.

The Court’s general powers include:

1. Deciding if a person has capacity to make a particular decision
2. Deciding whether an action is in a person’s best interests
3. Ruling whether a person is being deprived of their liberty
4. Confirming or revoking the validity of a lasting or enduring Power of Attorney
5. Appointing Deputies

Sections 15 to 23, Mental Capacity Act (MCA) 2005 define the powers of the Court, Section 15 gives the Court power to decide whether a person has capacity or not (either related to one specific decision or matters in general). The Court also has the power to declare whether an act or a proposed act was or would be lawful in relation to that person.

Section 16 MCA 2005 gives the Court power to make decisions (i.e. an order) on behalf of a person who lacks capacity (‘P’) in respect of P’s personal welfare or property and affairs.

According to Section 17 MCA 2005, personal welfare issues may include:

• Deciding where P will live
• Deciding what contact, if any, P is to have with any specified persons
• Prohibiting a named person from having contact with P
• Giving or refusing consent to treatment by a person providing health care for P
• Directing that the person responsible for P’s health care should allow someone else to take over

Section 18 MCA 2005 defines the Court of Protection’s power over P’s property and affairs as including:

• Control and management of P’s property
• Sale, exchange, charging, gift or other disposition of P’s property
• Acquiring property in P’s name or on P’s behalf
• Carrying on, on P’s behalf, any profession, trade or business
• Carrying out a contract entered into by P
• Conducting legal proceedings in P’s name or on P’s behalf

Why do you need the Court of Protection?

An application to the Court of Protection could be necessary when there is a major disagreement regarding a serious decision about someone who lacks capacity. Decisions which can be referred to the Court include where a person should live, and whether contact is permitted with a individual who poses a risk of harm or abuse. Often the disagreement is between P’s family and the Local Authority responsible for meeting P’s needs. For example, a family member or P themselves may have a strong view about what is in their best interests, but the Local or Health Authority disagrees.

If all other ways of making the decision, such as Best Interests meetings, have failed to reach a consensus then the only remaining option may be to apply to the Court of Protection.

Do you need to attend Court?

If the application concerns a Deputyship or statutory will which is agreed by the Court and all family members, then a full hearing is not required and an Order can be made based on written evidence only.

However if the application is objected to then a full hearing will be needed. Hearings are held in private and only parties to the application, which will include family members, can attend because it would be inappropriate for confidential information about a Protected Party to be made public.

Responsibility for making the application to the Court usually falls to the decision-making body. This is normally Social or Health Services within a Local Authority of NHS organisation.

If you have any further questions about Court of Protection, or any other aspect of Community Care Law, then contact our Community Care Law Team on 01273 609911, or email info@ms-solicitors.co.uk.