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Factsheet: Court of Protection

Three basic questions that can assist anyone who is concerned about a friend or relative who may lack mental capacity to make decisions and to look after themselves.

  1. What is the Court of Protection?
  2. What are the Powers of the Court?
  3. Why do I need the Court of Protection and do I need to attend Court?

What is the Court of Protection?

The Court of Protection, in its present form, was established by s 45(1) of the Mental Capacity Act (2005) commenced from 1 October 2007. It is a superior court of record that has jurisdiction over the property, financial affairs, personal welfare and healthcare of people who lack mental capacity to make decisions for themselves. The Court is able to set precedents and has the same powers and privileges in relation to mental capacity matters as the High Court. The statutory framework for the Court’s operation is provided by the Mental Capacity Act (2005) and the Court of Protection Rules (2007).
The Court of Protection is different to the Office of the Public Guardian. Essentially, the Court of Protection makes the decisions and the Office of the Public Guardian handles the ongoing supervision of Deputies. However, the Court does work hand in hand with the Office of the Public Guardian.
In essence the purpose of the Office of the Public Guardian and the Court of Protection is to protect vulnerable people, make sure their affairs are properly looked after and that no-one takes advantage of the situation they are in.

What are the Powers of the Court?

These are primarily governed by sections 15 to 23 of the Mental Capacity Act 2005. However, the Court may also exercise its inherent jurisdiction.

The Court’s general powers include:

  1. Whether a person has capacity to make a particular decision
  2. Whether an action is in a person’s best interests
  3. Whether a person is being deprived of their liberty
  4. The validity of a lasting or enduring Power of Attorney
  5. The appointment of Deputies

Under section 15 of the Mental Capacity Act 2005, the Court can make declarations as to whether a person has capacity or not (either related to one specific decision or matters in general). It also gives the Court power to make declarations about whether an act or a proposed act was or would be lawful in relation to that person.
Under Section 16 of the Act empowers the Court to make a decision (i.e. an order) on behalf of a person who lacks capacity (‘P’) in respect of P’s personal welfare or property and affairs.

According to Section 17 Mental Capacity Act 2005, personal welfare issues extend, in particular, to:

  1. Deciding where P is to live
  2. Deciding what contact, if any, P is to have with any specified persons
  3. Making an order prohibiting a named person from having contact with P
  4. Giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P
  5. Giving a direction that a person responsible for P’s health care allow a different person to take over that responsibility

According to Section 18 Mental Capacity Act 2005, P’s property and affairs extend, in particular, to:

  1. The control and management of P’s property
  2. The sale, exchange, charging, gift or other disposition of P’s property
  3. The acquisition of property in P’s name or on P’s behalf
  4. The carrying on, on P’s behalf, of any profession, trade or business
  5. The carrying out of any contract entered into by P
    The conduct of legal proceedings in P’s name or on P’s behalf

Why do I need the Court of Protection and do I need to attend Court?

A Court of Protection Application is an option when there is a major disagreement regarding a serious decision to be made, which cannot be settled in any other way. This includes where a person should live, stopping or limiting contact with a named individual because of a risk of harm or abuse to a person lacking capacity to decide on the contact. Often that disagreement is with the Local Authority responsible for meeting the needs of the person who may or does lack capacity.

It may become inevitable when the only option remaining is to access the Court of Protection, i.e. a family member or the person themselves may have a strong view about what is in the person’s best interests, which may differ considerably from that of the Local or Health Authority.
If a Court application for a Deputyship, statutory will etc is agreed by the Court and all close family members, then a full hearing is not required and an Order can be made based on written evidence only. However if an application is objected to then a full hearing will be necessary. Hearings are held in private and only parties to the application, which will include family members, will be able to attend. This is because confidential information about a Protected Party is being considered and it would normally be inappropriate for this to be made public.
In cases where an application should be made to the Court of Protection the Code of practice paragraph 8.8 puts that responsibility to do so with the decision making body – which will normally be Social Services or Health.

If you have any further questions about Court of Protection, or any other aspect of community care law, then contact our community care law team on 01273 609911, or email info@ms-solicitors.co.uk.

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