What is the Court of Protection and what does it do?

The Court of Protection is a specialised court that deals with matters relating to the welfare and financial matters of individuals who lack the mental capacity to make their own decisions.

The primary role of the Court of Protection is to make decisions and provide protection for individuals who are deemed to lack capacity to make specific decisions about their personal welfare or property and financial affairs.

This includes individuals who have cognitive impairments, such as those with dementia, learning disabilities or acquired brain injuries.

The Court of Protection has several key functions:

1. Determining mental capacity: The Court is responsible for assessing whether an individual has the mental capacity to make specific decisions. Capacity is both time and decision-specific, meaning that a person may have capacity in some areas but lack it in others and that capacity only needs to be present at the time of making the decision. The Court evaluates the person’s ability to understand, retain and weigh relevant information and communicate their decision when assessing capacity. To be deemed incapable, the inability of an individual to make a decision must be a direct result of a disturbance in the functioning of the mind or brain.
2. Appointing deputies: When individuals are unable to make decisions for themselves, the court can appoint deputies to make decisions on their behalf. Deputies are usually family members, friends or professionals, and they must always act in the best interests of the individual lacking capacity. Deputies will be given wide decision-making powers, though it is common for certain restrictions to be placed upon a deputy by the Court for safeguarding purposes. It is a fundamental principle that deputies are not authorised to make decisions the individual is capable of making for themselves after all practicable steps have been taken to help them. Capacity is to be presumed until it is proven to be lacking and when making a decision, a deputy should always choose the option that is the least restrictive of the individual’s freedoms.
3. Making decisions: The Court has the authority to make one-off decisions on behalf of individuals lacking capacity if there are disputes or concerns regarding their welfare, medical treatment or financial matters. This includes decisions about residence, care, medical treatment and property and financial affairs. The Court is more likely to make one-off decisions in relation to welfare matters than in financial matters where a deputy appointment is more common. In welfare matters, the Court expects all those with an interest in a person’s welfare to try to agree what is in the individual’s best interests first and only applying for judicial intervention where such agreement cannot be reached. For financial matters, amongst other things, one-off decisions could be to grant authority to a deputy to sell and/or purchase property, to authorise a statutory will or to make gifts.
4. Lasting Power of Attorney: The Court oversees the registration of Lasting Powers of Attorney (LPA) documents. LPAs are legal documents that allow individuals to appoint someone they trust as an attorney to make decisions on their behalf in case they lose capacity in the future. The Court can intervene if there are concerns about the attorney’s actions and can make decisions on the validity of the LPAs where this is in doubt.
5. Safeguarding vulnerable individuals: The Court plays a crucial role in protecting vulnerable individuals from abuse or exploitation. It can investigate allegations of abuse and take appropriate measures to safeguard the person’s welfare and interests.

The Court of Protection operates according to the principles outlined in the Mental Capacity Act 2005, which emphasise the importance of respecting individuals’ autonomy and making decisions that are in their best interests. The Court strives to strike a balance between protecting individuals and promoting their autonomy and rights as much as possible.

We are here to help

At Price Slater Gawne, we have a team of specialist lawyers who can provide legal representation in a wide range of Court of Protection matters. We understand the sensitive and delicate nature of Court of Protection proceedings and the importance of ensuring a vulnerable person’s best interests are catered for. We adopt a very personalised approach meaning that you and your loved ones are treated with respect and are genuinely cared for.

If someone close to you has lost capacity and is in need of a specialist Court of Protection solicitor who will be able to navigate the complexities of the Court, whilst delivering an efficient but caring service please contact the team on 03333 058375 or email cop@psg-law.co.uk.