Court of protection – what you need to know (Part 1)

Various illnesses and injuries can cause someone to ‘lose mental capacity’ – meaning they are not able to make certain decisions for themselves. Without a valid and registered Lasting Power of Attorney in place, the law does not automatically provide an individual with the authority to step in and make decisions. Instead, the law ensures that there are checks and balances in place that protect anyone who finds themselves in this unfortunate position.

The Court of Protection helps people in this situation as it has the ultimate power to make decisions for those deemed to have lost the required mental capacity to make the decisions in question. They can also appoint someone (called a ‘deputy’) to make these decisions on behalf of the person who lacks capacity. It is most common for deputies to be appointed to make ongoing financial decisions but less so in relation to health and welfare, which tends to be resolved by consideration of the exact point of contention after families and professionals have failed to agree on an appropriate course of action.

In the first of two blogs, we take a closer look at the most common questions Court of Protection lawyers are asked, and how the system works.

What is mental capacity and what situation could cause someone to lose it?

A person is deemed to lack capacity in relation to a matter if at the time they are unable to make a decision for themselves because of an impairment of, or a disturbance in the functioning of, the mind or brain. This is not necessarily an age-related issue, although certain degenerative illnesses such as dementia can be a potential cause of a disturbance of the functioning of a person’s brain. However, younger people can also lose the mental capacity to make decisions that govern their lives. Those with learning difficulties, Down Syndrome, autism and other similar conditions, and patients who have suffered strokes or a serious head injury can also fall into this category. It is also possible for severe depression to be a cause for loss of capacity.

Bear in mind, too, that the loss of mental capacity doesn’t necessarily have to be a permanent condition. In some cases (especially with strokes or depression), the patient may recover sufficiently to be able to take over the decision-making process themselves once again.

What is the difference between a Lasting Power of Attorney and the Court of Protection?

A Lasting Power of Attorney (or ‘LPA’) allows someone else to make decisions on your behalf and is split into two main areas – an LPA that tackles the health and welfare of the individual, and one that is specifically designed to look after the financial affairs of an individual. LPAs will last until they are revoked or until the individual making the LPA dies.

An LPA can only be put in place by the individual before they lose the mental capacity to make their own decisions. Fundamentally it allows you to nominate someone to make decisions on your behalf should you lose mental capacity or generally wish for them to help you.

If you lose mental capacity without a valid LPA in place then before decisions can be made in relation to finances (other than those received by the Department for Work and Pensions) the Court of Protection would be required to give judgement. Decisions can be made for an individual in relation to their health and welfare if all stakeholders are in agreement. In the absence of agreement, the Court would be required to make a ruling. An application to the Court of Protection can be brought by anyone with a particular interest in the individual’s care.

What decisions can the Court of Protection make?

The Court of Protection has a wide remit and can make decisions about a person’s welfare, property and personal affairs, including managing their money, where they should live, what kind of care they receive and so on. The Court can make these decisions on the person’s behalf, or they can nominate someone to make these decisions. That person would be known as a Deputy. It is the responsibility of the Court (and the appointed deputy) to only make decisions within their authority which represent the individual’s best interests. Further, they must always take the action that is the least restrictive of the individual’s freedoms.

The first task however is always to establish whether the individual is actually incapable of making the decision in question and this can only be established when all attempts to help that individual make the decision have failed. It is not the case that a deemed incapacity for one decision automatically means the individual is incapable of making every decision; capacity is time and issue specific.

A deputy could be a family member, close friend or a professional. The use of a professional deputy means that pressure is removed from family members who may not be confident to take over the role, or who may make inappropriate decisions on behalf of the person because of a vested interest or a concern that they’re too emotionally involved. Legal professionals are the most common form of professional deputy but local authorities will also take on the role on occasion.

In part two, we’ll be looking at more of the most commonly asked questions concerning Court of Protection orders and Deputies. In the meantime, if you have any questions you would like answered, get in touch with a family law expert today.