Court of Protection legal advice

Court of Protection Solicitors in London

The Court of Protection is a specialised court in England and Wales that handles cases involving individuals who lack the mental capacity to make their own decisions. This can be due to a variety of reasons, such as dementia, brain injury, or severe learning disabilities and where an adult did have mental capacity to appoint legal representatives (in the form of Attorneys) but for whatever reason did not.

The court’s primary role is to protect the best interests of these individuals.

Why try to avoid matters going to the Court of Protection?

While the Court of Protection is essential for safeguarding the rights of vulnerable individuals, it can be a complex and time-consuming process. There are several reasons why people should try to avoid using the court:

• Cost – court proceedings can be expensive, involving legal fees and other costs associated with the process.
• Delay – court cases can be lengthy, causing stress and uncertainty for those involved.
• Publicity – court proceedings are generally public, which can be distressing for the individual and their family.
• Loss of control – involving the court can lead to a loss of control over decision-making, as the court ultimately has the final say.

To avoid or minimise the need for court involvement, it’s crucial to plan ahead. Creating Lasting Powers of Attorney (LPAs) is a proactive step that can give individuals control over who makes decisions for them if they lose capacity. This can help to avoid the complexities and costs associated with court proceedings.

It’s important to note that while LPAs are valuable tools, they may not cover all situations, and in some cases, court involvement may still be necessary.

Common Types of Applications in the Court of Protection

The Court of Protection handles a wide range of applications related to individuals who lack the mental capacity to make their own decisions. Here are some of the most common types:

Property and Financial Affairs

• Deputyship applications – seeking appointment as a deputy to manage the financial affairs of an incapacitated person.
• Sale of property – obtaining court authorization to sell property owned by an incapacitated person.
• Investment decisions – seeking court approval for significant investments.
• Gifts – applying for permission to make gifts which can include for tax planning purposes.

Health and Welfare

• Best interests decisions – seeking court guidance on significant health or welfare decisions, such as where someone should live or what medical treatment they should receive.
• Deprivation of liberty safeguards (DoLS) – applying for authorization to deprive someone of their liberty in a care home or hospital.
• Marriage or civil partnership – seeking court approval for a marriage or civil partnership for an incapacitated person.

Applying to remove an appointed Attorney

The applicant alleges that the attorney is acting improperly or in a way that is not in the best interests of the person they are acting for, the court can revoke the appointment of an attorney and appoint a deputy if the person who granted the power of attorney no longer has the mental capacity to appoint a new attorney.

Several parties can apply to remove an attorney with a Lasting Power of Attorney (LPA):

• The Donor (the person who created the LPA) – if the donor retains mental capacity, they can remove an attorney by completing a “partial deed of revocation.” This document is sent to the Office of the Public Guardian (OPG).
• Another Attorney – if there are multiple attorneys appointed, one attorney can apply to remove another. This is typically done through the Court of Protection.
• A Concerned Party – this includes relatives, friends, or carers who believe the attorney is acting inappropriately or not in the donor’s best interests. They can apply to the Court of Protection for the removal of the attorney.
• The Office of the Public Guardian (OPG) – has the power to apply to the Court of Protection to remove an attorney if they have concerns about their conduct.
• The Attorney – an attorney can apply to be removed from their role if they no longer wish to or are unable to fulfill their duties.

Other Applications

• Appointing a litigation friend – seeking the appointment of a person to represent the interests of an incapacitated person in legal proceedings.
• Statutory wills – making a will on behalf of an incapacitated person.

It’s important to note that these are just some of the common types of applications made to the Court of Protection. The specific circumstances of each case will determine the appropriate course of action.

Our team have experience making applications for deputyships, for gifting for tax planning and obtaining retrospective approval for gifts made by an inexperienced attorney and statutory wills.