Published 20th March 2019 | Court of Protection

Court of Protection – Protecting your loved ones

Court of Protection Advice

If you have a family dependent on you, you may sometimes worry about what would happen if you were no longer able to look after them, especially if any of them have special needs. Alternatively, you may worry about what would happen to you in the event of losing capacity. Would your care become a burden on your loved ones?

There are many steps that can be taken to put your mind at rest, and some of these involve the Court of Protection. On the whole, you would be well advised to put arrangements in place that avoid the need to go to the Court of Protection, but sometimes it cannot be avoided.

For these cases, it is important to know how the court works and how to ensure the best results from it.

What is the Court of Protection?

The Court of Protection in England and Wales is a superior court that was established under the Mental Capacity Act 2005.

Broadly, the purpose of the Court of Protection is to make decisions and resolve disputes about the well-being of people who lack capacity to make their own decisions. This may be due to dementia, mental illness, learning disabilities or brain injury.

Who might require the Court of Protection?

People who may require a decision to be made on their behalf by the Court of Protection, or a Deputy to be appointed for them can include those who suffer from the following conditions or injuries;

  • Dementia, such as Alzheimer’s Disease, if they have not previously made their own arrangements.
  • Severe mental health issues which leave them unable to make decisions based on actual circumstances.
  • Severe learning disabilities.
  • Brain injury, usually from an accident or illness, leaving them in a similar condition.

Appointing a Deputy through the Court of Protection

If a close relative loses capacity to make decisions, they will require someone to make those decisions on their behalf, acting in their best interests. The ideal solution is to have arranged this beforehand, by setting up a Lasting Power of Attorney (LPA). If they have not done so, or if the person appointed is no longer able to undertake the role, it will be necessary to apply to the Court of Protection instead.

The Court of Protection will appoint one or more people to act as Deputies. This can either cover a person’s property and financial affairs or health and welfare, or both. However, the Court of Protection are strict on when a Health and Welfare Deputy is appointed, You can ask to be appointed as Deputy but it will ultimately be up to the court to decide if your suggestions are suitable. If however a person has a large amount of money, usually as compensation then it is likely that the Court of Protection will want a professional Deputy to be appointed.

In some ways, a Deputyship works similar to an LPA, but the differences are significant. It usually costs more to set up; it involves close supervision by the Office of the Public Guardian; and you may need to go back to the Court of Protection for authority to make certain decisions.

Statutory Wills

Normally, if circumstances change and your Will is no longer appropriate, you draw up a new one to replace it. However, when this happens to someone who has lost mental capacity, this is not possible.

In such cases, an application may be made to the Court of Protection for a Statutory Will. The court will look at matters from various parties and decide whether to agree to any proposed Will.

Resolving disputes

In an ideal world, family members would come to an agreement about the best interests of the person needing support, but this is not always the case. Various people may hold differing strong views and be unable to reach a consensus. This may, for instance, be siblings disagreeing about the interests of a parent with dementia, or estranged parents of a person with severe learning disabilities.

Typical issues for disputes are the best place for the person to live (e.g. at home or in residential care) or the type of care they should be receiving.

In such cases, the Court of Protection will listen to all arguments, but will have the responsibility of giving a judgment that it considers to be in the best interests of the person involved.

Osborne Morris & Morgan- Court of Protection specialists

The Court of Protection is dedicated to protecting the best interests of a person who has lost capacity for decision-making. However, dealing with the court can be a difficult process. For the best chance of getting the outcome you want, you need an expert, specialist solicitor working on your behalf.

At Osborne Morris & Morgan, we understand that the process of applying for deputyship can be confusing, stressful and upsetting. This is where our team of Court of Protection specialists can help and guide you throughout the process. We have a nationally recognised Court of Protection team who can help you with; applying for Deputyship, guiding you through your role, or becoming a Deputy.

Speak to our specialist Court of Protection team today on 01525 378177 or via online.

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