FAQs: Court of Protection Litigation

1. Your mother has had a stroke and needs residential care. She did not make a Lasting Power of Attorney for property and financial affairs. How can you access your mum’s bank account to pay for her care home?
2. Social Services have said your elderly father lacks mental capacity to make decisions for himself, but you believe he can make decisions with the right assistance. Can you challenge the Mental Capacity Assessment?
3. Social Services moved your aunt to a care home under a Deprivation of Liberty Safeguard authorisation. You want to move her to a care home nearer to you and her other relatives as this is what she wants, but Social Services say you cannot do this. How can you apply to Social Services to move your aunt to a care home near you?
4. Your older brother has an old Enduring Power of Attorney for your mum. He wants to move her to a care home but you believe she would rather be cared for at home. How can you help your mum to remain living at home?
5. You are worried that your uncle’s Attorney, his son, is not managing his financial affairs properly and may be misusing your uncle’s money to buy things for himself. How can you safeguard your uncle from financial abuse?
6. Your son has severe learning disabilities and will be 18 next year. Social Services say they will do transition planning from children’s to adult services and that you will not be able to make decisions for him anymore. How can you stay involved in decision making about your son’s health and welfare?
7. When should you make an application to the Court of Protection?
8. How much does an application to the Court of Protection cost?
9. How can Martin Searle Solicitors help with an application to the Court of Protection?

Your mother has had a stroke and needs residential care. She did not make a Lasting Power of Attorney for property and financial affairs. How can you access your mum’s bank account to pay for her care home?

You may wish to make an application to the Court of Protection to be appointed as your mother’s Deputy for Property & Finance, if she no longer has the capacity to appoint you as Attorney. Once appointed, you will be able to manage your mother’s finances for her and use her funds to pay for her care. This may take some time and the Local Authority can be contacted with a request that they loan fund the fees until the Deputy appointment is made.

Social Services have said your elderly father lacks mental capacity to make decisions for himself, but you believe he can make decisions with the right assistance. Can you challenge the Mental Capacity Assessment?

You can ask for a copy of the Social Services Mental Capacity Assessment to see why they decided he lacks capacity. This should not be a blanket opinion that your father cannot make any decisions for himself. The test for mental capacity is decision–specific, meaning your father may be able to make some decisions for himself, with or without assistance. If you still have doubts after reading the Capacity Assessment, sometimes it may be appropriate to obtain another independent Capacity Assessment and if there is still disagreement, ask the Court of Protection to decide.

If there are important decisions that your father cannot make for himself, you could ask Social Services to appoint an Independent Mental Capacity Advocate (IMCA) for your father. IMCAs are experienced and skilled professionals who make sure that the vulnerable adult’s wishes and feelings are heard and respected by everyone including Social Services in the best interest decision making process.

Social Services moved your aunt to a care home under a Deprivation of Liberty Safeguard authorisation. You want to move her to a care home nearer to you and her other relatives as this is what she wants, but Social Services say you cannot do this. How can you apply to Social Services to move your aunt to a care home near you?

You should ask for best interests meeting to be held to discuss where your aunt should live and be cared for. If an agreement cannot be reached via the best interests process, then Social Services should make an application to the Court of Protection for a decision.

The Court will consider all of the evidence, including your aunt’s wishes and feelings, and the Judge will make a best interests decision about where your aunt should live and be cared for.

Your older brother has an old Enduring Power of Attorney for your mum. He wants to move her to a care home but you believe she would rather be cared for at home. How can you help your mum to remain living at home?

The Enduring Power of Attorney (EPA) does not give your brother the power to make decisions about where your mum should live and be cared for. The EPA only allows him to make financial decisions.

If your mum lacks the capacity to make the decision for herself, then a best interests meeting should be held. This involves everyone putting forward their views, but also considering your mum’s wishes and feelings and what she said about care at home before she lost capacity.

If family members continue to disagree about what is best for your mum, you may need to ask social services to apply to the Court of Protection.

You are worried that your uncle’s Attorney, his son, is not managing his financial affairs properly and may be misusing your uncle’s money to buy things for himself. How can you safeguard your uncle from financial abuse?

You can report the matter to the Social Services Safeguarding Team and/or to the Office of the Public Guardian (OPG). Both have duties to investigate how your uncle’s finances are being managed or mismanaged.

If they find your cousin is abusing his role as Attorney, or he cannot manage the financial role properly, the OPG can apply to the Court to revoke the Lasting Power of Attorney.

The OPG will likely then appoint a Deputy for Property & Finance. It may be sensible to consider a Professional Deputy to minimise family conflict: the Deputy’s fees will be paid from your uncle’s funds.

Your son has severe learning disabilities and will be 18 next year. Social Services say they will do transition planning from children’s to adult services and that you will not be able to make decisions for him anymore. How can you stay involved in decision making about your son’s health and welfare?

You can make an application to the Court of Protection for a Health and Welfare Deputyship, but these are not easy to obtain.

In addition to application forms you will need to provide the Court with a statement giving the reasons why you think it is in your son’s best interests for you to act as his Deputy. We can help you to write a statement explaining to the Court what decisions need to be made for your son in the future and why you are the best person to make those decisions on his behalf.

When should you make an application to the Court of Protection?

Applications to the Court of Protection should only be made when all other routes have been explored but no resolution has been reached. Other avenues which should be exhausted first include meetings with health and social services, mediation and alternative dispute resolution.

In some circumstances, the matter might be urgent and an application to the Court of Protection is the only appropriate course of action. In other cases, the matter may have been ongoing for so long, with no agreement despite many meetings, that the Court of Protection is the final and only option.

Our Court of Protection and Community Care Law Team specialise in urgent and non-urgent applications and will represent you at hearings whether you are an applicant or a respondent in the proceedings.

How much does an application to the Court of Protection cost?

The Court charges an application fee of £421, but there also additional court fees where a hearing is required and costs associated with Court proceedings, such as Expert and barrister fees.

Court of Protection proceedings are expensive, so our team at Martin Searle Solicitors always try to avoid unnecessary applications where possible.

If an application is inevitable, we will provide you with cost estimates for our work and any additional charges at every stage of the process. We review our cost estimates on a regular basis and update you with any changes.

For some non-contentious applications, such as Deputyship applications, we can offer an agreed fee so you know from the outset what costs are involved.

How can Martin Searle Solicitors help with an application to the Court of Protection?

Our Community Care Law Team has helped many clients navigate their cases through the Court of Protection. We achieve excellent outcomes for adults at risk and their families, ensuring that the rights of people lacking capacity to make their own financial or welfare decisions are protected.

We know that Court of Protection proceedings can be stressful. We have the experience and expertise to support you throughout the process.

If you need further information regarding a Deputyship application or about how the Court of Protection might assist you or a loved one, contact us today on 01273 609911 or email info@ms-solicitors.co.uk.