Court of Protection & Vulnerable Persons

The Court of Protection has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves. The Court of Protection can also give these powers to someone else (known as a deputy) if there is a need for decisions to be made on an ongoing basis.

If the person who has lost mental capacity put in place a Lasting Power of Attorney before they lost capacity, their affairs can be managed by their appointed attorney. If the person has lost capacity without appointing an attorney, a friend or relative can apply to the Court of Protection to become their deputy or for a professional (such as a solicitor) to be appointed.

A deputy is a person appointed by the Court of Protection to make decisions for someone who lacks mental capacity about their finances, property and health or wellbeing.

Deputies are usually relatives or friends of the person who lacks mental capacity to make their own decisions. A deputy can also be a professional (such as a solicitor). The Court of Protection can appoint a specialist deputy (called a ‘panel deputy’) from a list of approved law firms and charities if no one else is available.

If you are concerned that a deputy or attorney is abusing their position, the Office of the Public Guardian must be informed. The Office of the Public Guardian is responsible for the supervision of deputies and attorneys.

If you believe that the deputy or attorney is not acting in the best interests of the person they are responsible for, you can apply to the Court of Protection to remove and replace them.

If a person lacks capacity to make their own will, the Court of Protection can make a Statutory Will on their behalf. An application will need to be made to the Court of Protection (usually by someone authorised to act for that person - such as their attorney or deputy).

It is important to note that there is not one general form of mental capacity, as capacity is always time and decision specific. This means that a person could have capacity to manage their property and financial affairs but lack capacity to make decisions about where they live and receive care. Certain medical conditions can also impact on a person’s capacity, such as acute confusion, which means that it is important to have the most up to date assessment and to repeat it if the person’s circumstances have changed. 

It should be noted that the Mental Capacity Act 2005 presumes that a person has capacity to make a decision. It is for the person arguing that they do not have this capacity to provide evidence to the contrary. The legislation also stipulates that ‘all practicable steps must be taken to help’ a person to make the decision for themselves, and for those steps to be unsuccessful, before it is concluded that a person lacks capacity for that particular decision.

If you are concerned that your loved one lacks capacity in relation to a decision to be made, for example whether they should move to a care home, then you should seek legal advice in relation to your options before taking any steps such as instructing a professional to carry out a capacity assessment. We are able to assist you in finding a suitably qualified person to carry out the assessment.

In relation to a testator making a will, it is their testamentary capacity that needs to be established. This is the legal term used to describe a person’s legal and mental ability to make or alter a valid will. Case law has set out the test to be established and one limb of the test is that the person must understand the nature of making a will and its effects. This is important because, if the person making the will, the testator, lacks testamentary capacity at the time the will is executed, it will be invalid. The result will be that either the intestacy rules, or the terms of an earlier will made by the testator, will apply, which may not be what the testator would have wanted.

If you believe that your loved one lacks capacity to make a certain decision, or they have already been deemed by a professional as lacking the necessary capacity, we can help you. Our team of specialist lawyers have extensive experience in dealing with capacity issues, both during a person’s lifetime and after someone has passed away.

We can guide you through the process and assist with instructing a professional to carry out a capacity assessment for your loved one. If capacity has already been assessed, or you are questioning the capacity of a loved one after they have passed away, we can obtain and analyse any documentary evidence, such as capacity assessments, medical records and will files, and advise you in regard to the next steps and options available to you. 

Different rules apply in the Court of Protection depending on whether the application concerns property and financial affairs or health and welfare issues.

In cases relating to property and financial affairs, the costs of proceedings will usually be met by the person lacking mental capacity. In cases relating to a person’s health and welfare, the general rule is that each party must bear their own costs. This means that you will generally be responsible for your own legal fees.

However, the Court of Protection does have the power to depart from these rules, should this be justified in the circumstances. For example, if one party has acted unreasonably in making an application, failed to co-operate with the other parties or failed to comply with a rule or Court Order. We can advise you as to the merits of making a costs application or where there is a risk of a costs application being made against you.