Court of Protection FAQs

1. What is the Court of Protection?
2. Who does the Court of Protection make decisions for?
3. What does the Court of Protection have and not have the power to do?
4. Is the Office of the Public Guardian different from the Court of Protection?
5. Do I need a Solicitor for the Court of Protection?
6. How do you apply to the Court of Protection?
7. Who pays for the Court of Protection?
8. How long does the application process typically take and is there an emergency procedure?
9. What evidence is needed for a Court of Protection application?
10. When is it legally necessary to apply to the Court of Protection rather than using a Power of Attorney?
11. Can the Court of Protection overrule a Power of Attorney?
12. Can the Court of Protection decide whether a Lasting Power of Attorney is valid?
13. You think that someone you know is financially abusing a friend/relative. What can you do?
14. When would the Court appoint a Deputy?
15. How would someone lose mental capacity?
16. Who decides if someone lacks capacity?
17. What recourse do I have if I disagree with a decision made by an existing Deputy?
18. What specific evidence and forms (such as the COP3) are required to prove a lack of mental capacity?
19. If someone lacks capacity does that mean they can’t make ANY decisions themselves?
20. Is there a way to avoid going to the Court of Protection?

What is the Court of Protection?

The Court of Protection was established by the Mental Capacity Act 2005 and helps people who are not able to make their own decisions. The Court makes decisions for them about their money, property, health or welfare when others do not agree about what is in their Best Interests.

The Court can appoint someone else, known as as a Deputy, to make decisions on an ongoing basis where the person can no longer make their own decisions. A Court will often appoint a Deputy to make decisions about Property and Financial Affairs, it is less common that they will appoint a Deputy to make decisions about Health and Welfare matters.

Who does the Court of Protection make decisions for?

The Court of Protection makes decisions for people who lack the mental capacity to make certain decisions for themselves.

This may include individuals affected by conditions such as dementia, a brain injury, a learning disability, or serious mental health issues. The court becomes involved where a person is unable to make a specific decision and there is no one authorised to act on their behalf, or where there is a disagreement about what should happen.

What does the Court of Protection have and not have the power to do?

The Court of Protection has the power to make decisions on behalf of people who lack the mental capacity to make decisions for themselves. Its powers are set out in the Mental Capacity Act 2005 and are focused on ensuring decisions are made in the person’s best interests.

The Court of Protection can:

• Make decisions about a person’s property and financial affairs, such as managing bank accounts, paying bills, or selling property.
• Make decisions about a person’s health and welfare, including medical treatment and care arrangements.
• Appoint a deputy to make ongoing decisions on behalf of the individual.
• Decide whether a person has mental capacity to make a specific decision.
• Resolve disputes between family members, professionals, or others involved in the person’s care.

However, there are clear limits on what the Court of Protection cannot do. It cannot:

• Make decisions on behalf of someone who has mental capacity to make that decision themselves.
• Enforce a particular decision if the person is assessed as having capacity, even if others disagree with their choice or think it is unwise.
• Act outside the framework of the Mental Capacity Act 2005 or ignore the requirement to act in the person’s best interests.
• Override a valid and applicable Lasting Power of Attorney, unless there are concerns about how it is being used.
• Make decisions that are reserved for other courts, such as certain criminal matters.

Understanding these boundaries is important. The Court of Protection has significant powers, but they are carefully controlled and only exercised where a person lacks capacity and intervention is genuinely required.

Is the Office of the Public Guardian different from the Court of Protection?

The Office of the Public Guardian (OPG) is responsible for supervising and monitoring appointed Deputies and Attorneys to ensure they fulfil their roles properly. The Court decides whether an existing Attorney or Deputy should be removed or replaced if their conduct is a cause of concern.

Do I need a solicitor for the Court of Protection?

You do not need to instruct a solicitor to apply to the Court of Protection or take part in proceedings.

However, these cases can be complex, particularly where there are disputes, significant financial decisions, or sensitive health and welfare issues involved. The application process can be detailed, and the court will expect clear evidence and properly completed documentation.

For straightforward matters, such as applying to become a Deputy for property and financial affairs, some people choose to manage the process themselves. However, where the situation is more complicated – for example, if there is disagreement between family members, concerns about capacity, or high-value assets –  taking legal advice from Court of Protection solicitors can help ensure the application is handled correctly and reduce the risk of delays or challenges.

Ultimately, while a solicitor is not required, professional advice can provide reassurance and help navigate what can be a legally and emotionally complex process.

How do you apply to the Court of Protection?

If someone you care about loses the ability to make specific decisions, you can apply to the Court of Protection for permission to make decisions for them. There are some forms to be completed and a capacity assessor needs to confirm to the court that the person cannot make the relevant decision for themselves, due to an impairment or disturbance in the function of the mind or brain.

It is very important that the forms are filled in correctly and you need to identify exactly what powers you are applying for. For example, you might only need the power to help your loved one manage their money, or to make decisions about what treatment they receive in hospital. Or you might need more general authority to help them with all their financial decisions.

We can help you work out which forms you need and complete them for you, reducing delays by the Court of Protection.

Who pays for the Court of Protection?

In most cases about property and finance, the costs of a Court of Protection application are paid from the assets of the person the application relates to (often referred to as “P” or “the protected party”).

This can include court fees, legal costs, and any ongoing costs associated with managing their affairs, such as deputyship fees. The rationale is that the application is being made for their benefit, so their funds are typically used.

However, there are exceptions. For example, where an application is unsuccessful, unnecessary, or arises due to a dispute, the court has discretion to decide who should pay the costs. In some cases, it may order that another party pays, particularly if their conduct has caused unnecessary expense.

Fee exemptions or reductions may also be available where the person has limited financial means.

It is important to understand potential costs at the outset, as these can vary depending on the complexity of the case and whether legal advice is required.

How long does the application process typically take and is there an emergency procedure?

The time it takes to complete a Court of Protection application process can vary. It will ultimately depend on the type and complexity of the application.

For straightforward applications, such as appointing a deputy for property and financial affairs, after the application is submitted, the Court process typically takes several months. Delays can occur if further information is needed, if the application is contested, or due to Court of Protection backlogs

More complex cases – particularly those involving health and welfare decisions or disputes – can take longer and can involve a series of court hearings.

In urgent situations, the Court of Protection can deal with matters on an emergency basis. This is usually referred to as an urgent or interim application. The court may prioritise situations where important financial decisions cannot wait or cases where there is a risk of serious harm or a need for immediate medical treatment.

In these cases, the court can make interim orders to deal with the immediate issue while the full application is considered. However, you will need to clearly explain why the matter is urgent and provide supporting evidence.

Because of the potential delays in standard applications, it is often advisable to act promptly where decisions may be needed in the near future.

Our specialist community care lawyers can assist with applying to the Court of Protection and guiding you through the process.

What evidence is needed for a Court of Protection application?

Clear and structured evidence is needed to support a Court of Protection application, particularly in relation to the person’s mental capacity and the specific decisions that need to be made on their behalf.

A key requirement is a formal assessment of capacity, usually completed by a medical professional or other qualified practitioner. This confirms whether the individual is able to make the specific decision in question.

In addition, the court will typically require:

• Details of the person’s circumstances – including their current care arrangements, financial position, and any relevant background information.
• Information about the decision to be made – what is required, why it is necessary, and why the person cannot make that decision themselves.
• Evidence supporting best interests – an explanation of why the proposed outcome is considered to be in the person’s best interests, taking into account their wishes, feelings, beliefs, and values.
• Views of others involved – where appropriate, input from family members, carers, or professionals involved in the person’s care.
• Supporting documentation – this may include medical reports, financial records, or care plans

The court relies on this evidence to make informed, balanced decisions. Incomplete or unclear information can lead to delays or requests for further evidence, so it is important that a Court of Protection application is thorough and accurate from the outset.

When is it legally necessary to apply to the Court of Protection rather than using a Power of Attorney?

It is legally necessary to apply to the Court of Protection where a person lacks mental capacity to make decisions and there is no valid Power of Attorney in place.

A Power of Attorney can only be created while a person still has capacity. If capacity has already been lost, it is no longer possible to put one in place. In those circumstances, an application to the Court of Protection is required so that someone can be formally authorised to make decisions on their behalf.

An application may also be legally needed where:

• An existing Lasting Power of Attorney is not valid or cannot be used (for example, if it was not properly executed or registered).
• The appointed attorney is unable or unwilling to act, and no replacement has been named.
• There are concerns about how an attorney is acting, such as potential misuse of funds or failure to act in the person’s best interests.
• A decision is required that falls outside the scope of the existing Power of Attorney.
• There is a dispute between those involved about what should happen.

In these situations, the Court of Protection can step in to make decisions or appoint a Deputy with legal authority to act.

Understanding the difference is important. A Power of Attorney allows decisions to be made without court involvement, but if capacity is lost and no valid arrangement is in place, the Court of Protection becomes the only way to obtain the necessary legal authority.

Can the Court of Protection overrule a Power of Attorney?

Yes, the Court of Protection can overrule a Power of Attorney, but only in certain circumstances.

A valid Lasting Power of Attorney (LPA) gives the appointed attorney legal authority to make decisions on behalf of the individual. In most cases, the Court of Protection will respect that authority and will not interfere.

However, the court can step in where there are concerns about how the Power of Attorney is being used or whether it remains appropriate. For example, the Court of Protection may:

• Remove or replace an attorney if they are not acting in the person’s best interests.
• Limit an attorney’s powers or give specific directions about how decisions should be made.
• Make decisions itself in situations where there is a dispute or where the attorney’s authority is unclear.
• Declare a Power of Attorney invalid if it was not properly created or registered.

The court’s role is to protect individuals who lack capacity. It will only intervene where there is a clear reason to do so, such as concerns about misuse of authority, conflict between parties, or risk to the individual’s welfare or finances.

Can the Court of Protection decide whether a Lasting Power of Attorney is valid?

Yes. The Court of Protection has the authority to decide whether a Lasting Power of Attorney (LPA) is valid.

Although LPAs are registered by the Office of the Public Guardian, the Court of Protection can review and determine their validity if concerns are raised. This may happen where there are questions about how the LPA was created or whether it is being used appropriately.

For example, the court may consider:

• Whether the individual had mental capacity when the LPA was made.
• Whether there was any undue influence, fraud or pressure.
• Whether the LPA was properly completed and registered.
• Whether the attorney is acting within their authority and in the person’s best interests.

If the court finds that the LPA is not valid, it can declare it invalid or revoke it. Where necessary, it may also appoint a Deputy to take over decision making.

The Court of Protection acts as a safeguard, ensuring that LPAs are valid and used correctly, and that the individual’s interests are protected.

You think that someone you know is financially abusing a friend/relative. What can you do?

You could contact your Local Authority and ask to speak to the Adults Safeguarding Team. You can also report the issue to the Office of the Public Guardian (OPG) if an Attorney or Deputy is involved. The OPG will investigate and could make an application for the Attorney or Deputy to be removed.

We are very experienced in helping people in this situation and can also advise on whether an urgent application to the Court of Protection is appropriate, so do contact us for advice.

When would the Court appoint a Deputy?

A Deputy is appointed when an individual’s affairs need to be looked after because they are not capable of making decisions for themselves.

Everyone has the right to choose who will manage their affairs, should they lose the capacity to make decisions themselves. The best way is by making a Lasting Power of Attorney (LPA). If someone has not made an LPA, and then loses mental capacity to decide to make one, an application to the Court of Protection will be necessary to appoint a Deputy or the court to make a “one-off” decision.

How would someone lose mental capacity?

Mental capacity can be lost in a number of ways; the most common is moderate to advanced-stage dementia, which may develop in later life. Acquired brain injuries, a severe stroke, learning disabilities and severe forms of autism can also result in lack of capacity.

Who decides if someone lacks capacity?

Ultimately, it is the Court that decides. A solicitor preparing a Lasting Power of Attorney may have concerns about their client’s capacity and will seek evidence from a relevant professional, such as a GP, independent social worker or psychiatrist. If a capacity assessment confirms that a person lacks capacity, the Court will normally accept this as a reason to appoint a Deputy for Property and Financial Affairs.

What recourse do I have if I disagree with a decision made by an existing Deputy?

If you disagree with a decision made by an existing Deputy, the recourse you have depends on the nature and seriousness of your concern.

In the first instance, it is often sensible to raise the issue directly with the Deputy, particularly if the disagreement relates to a specific decision. Deputies are required to act in the person’s best interests, and concerns can sometimes be resolved through discussion.

If the issue cannot be resolved informally, you can escalate matters. Options include:

• Raising concerns with the Office of the Public Guardian (OPG), which supervises Deputies and can investigate how they are carrying out their role.
• Applying to the Court of Protection to review the Deputy’s decision, provide directions, or determine what is in the person’s best interests.
• Requesting the removal or replacement of the Deputy where there are serious concerns, such as mismanagement of finances or failure to act properly.

The Court of Protection has significant powers to intervene where necessary, including overturning decisions or appointing a new Deputy.

If you have concerns about a Deputy’s actions, it is important to act promptly. Seeking legal advice early on from Court of Protection lawyers can help you understand your options and ensure that the individual’s interests are properly protected.

What specific evidence and forms (such as the COP3) are required to prove a lack of mental capacity?

To establish a lack of mental capacity, the Court of Protection requires both the correct forms and clear supporting evidence.

Forms

The key document is the COP3 mental capacity assessment form. This is a formal assessment completed by a medical professional or suitably qualified practitioner, confirming whether the person has capacity in relation to the decision in question. The court places significant weight on this document.

Evidence

If there is a dispute about whether the person has or lacks mental capacity, the Court is likely to make directions for further relevant evidence, which may include:

• An assessment and report by a Court of Protection Special Visitor
• An assessment and report by an independent professional such as a psychologist, psychiatrist or independent social worker

The court will not make assumptions. It requires evidence that clearly links the person’s alleged lack of mental capacity to the specific decision being considered.

Our specialist community care lawyers can assist with Court of Protection applications, including preparing the application, completing the required forms (such as the COP3), and collating the necessary supporting evidence.

If someone lacks capacity does that mean they can’t make ANY decisions themselves?

No, not necessarily.

The legal tests for capacity are ‘issue-specific’. For example, someone who lacks the capacity to manage their financial affairs may have capacity to make decisions about daily shopping.

Likewise, someone lacking the capacity to understand and arrange the payment of their care fees may have the capacity to decide where they live and who cares for them.

Is there a way to avoid going to the Court of Protection?

Yes, in some situations it is possible to avoid making an application to the Court of Protection, depending on the circumstances and the level of support needed.

The most common way to avoid court involvement is for the person to put in place a Lasting Power of Attorney (LPA) while they still have mental capacity. This allows them to choose one or more trusted individuals to make decisions on their behalf in the future if they later lose capacity.

If an LPA is already in place and is valid, properly registered, and covers the relevant decisions, the Court of Protection is usually not needed.

In some cases, decisions can also be managed without court involvement through:

• Informal support arrangements, where the person still has capacity to make their own decisions but needs help or guidance.
• Existing legal authority, such as a valid LPA or Enduring Power of Attorney (for older arrangements still in force).
• Health or social services decision-making frameworks, where day-to-day decisions are made in the person’s best interests without the need for court intervention.

However, the Court of Protection becomes necessary where there is no valid authority in place, where there is dispute or uncertainty, or where decisions are complex, high risk, or cannot be agreed informally.

In short, while court involvement can often be avoided with proper planning, it remains the legal safeguard where authority or agreement is missing.

If you have further questions about the Court of Protection, contact our Court of Protection Solicitors based  across Surrey and Sussex on 01273 609911, or email info@ms-solicitors.co.uk.