Some basic information to assist anyone concerned about loved one who may lack mental capacity to make decisions and to look after themselves.
The Court of Protection was established by the Mental Capacity Act (2005). The Court has jurisdiction over the property, financial affairs, personal welfare and healthcare of people who lack mental capacity to make decisions for themselves.
The Court of Protection is different to the Office of the Public Guardian but the two work closely. Essentially, the Court of Protection makes the decisions and the Office of the Public Guardian handles the ongoing supervision of Deputies.
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 so that no-one takes advantage of them.
The Court’s powers are governed by the Mental Capacity Act 2005 but the Court may also exercise its inherent jurisdiction.
Sections 15 to 23, Mental Capacity Act (MCA) 2005 define the powers of the Court, Section 15 gives the Court power to decide whether a person has capacity or not (either related to one specific decision or matters in general). The Court also has the power to declare whether an act or a proposed act was or would be lawful in relation to that person.
Section 16 MCA 2005 gives the Court power to make decisions (i.e. an order) on behalf of a person who lacks capacity (‘P’) in respect of P’s personal welfare or property and affairs.
An application to the Court of Protection could be necessary when there is a major disagreement regarding a serious decision about someone who lacks capacity. Decisions which can be referred to the Court include where a person should live, and whether contact is permitted with a individual who poses a risk of harm or abuse. Often the disagreement is between P’s family and the Local Authority responsible for meeting P’s needs. For example, a family member or P themselves may have a strong view about what is in their best interests, but the Local or Health Authority disagrees.
If all other ways of making the decision, such as Best Interests meetings, have failed to reach a consensus then the only remaining option may be to apply to the Court of Protection.
If the application concerns a Deputyship or statutory will which is agreed by the Court and all family members, then a full hearing is not required and an Order can be made based on written evidence only.
However if the application is objected to then a full hearing will be needed. Hearings are held in private and only parties to the application, which will include family members, can attend because it would be inappropriate for confidential information about a Protected Party to be made public.
Responsibility for making the application to the Court usually falls to the decision-making body. This is normally Social or Health Services within a Local Authority of NHS organisation.