What is the Court of Protection?

The new Court of Protection was established on 1 October 2007 by s 45(1) of the Mental Capacity Act 2005. The original name ‘Court of Protection’ having been given to the Court 1947. The powers of the Court of Protection are set out in sections 15 to 23 of the Act but it may also exercise its inherent jurisdiction. The court has jurisdiction over the property, finances, personal welfare and healthcare of anyone who lacks the mental capacity to make specific decisions about these matters at the time they need to be made. The purpose of the Court is to protect vulnerable people, ensuring that their Best Interests are the centre of any decision-making. Section 17 of the Act sets out the personal welfare issues the Court can deal with and Section 18 the Court’s powers over property and affairs. Section 20 of the Act sets out decisions that only the Court can make.

Court of Protection General Powers

The general powers of the Court include the ability to make declarations, make decisions on behalf of someone who is found to lack capacity, appoint a Deputy, authorise detention if it is in the Best Interests of a person to do so and where a person is under 18, with the authority of the Lord Chief Justice transfer proceedings to the High Court.

Court of Protection Specific Powers

In addition the Court may under Section 21A of the Act, providing it is in the best interests of a person to do so at the time, review a DoLS authorisation. Under Section 22 of the Act the Court can review, alter, monitor and if necessary revoke a Lasting Power of Attorney (or if made prior to October 2007 an Enduring Power of Attorney) if it is found the requirements for creating it have not been met, or where an attorney has, or is acting in contravention of the authority given to them or is not acting in the persons Best Interests. It may alter the nature and scope of any decision and give additional authority if it is found to be in a persons Best Interest to do so.

Court of Protection and the Office of the Public Guardian

The Court of Protection works closely with the Office of the Public Guardian (OPG) with the Court able to make decisions under the Act and the OPG having an ongoing statutory supervisory role to ensure that Attorneys or Deputies carry out their legal duties.

Why is the Court of Protection needed?

The Court is able to assist where a serious decision needs to be made for someone who lacks capacity and there is a disagreement or where no one is authorised in that respect. An application should be made where consensus cannot be reached having exhausted other options including a Best Interests meeting.

Grainne Feeney has over 20 years’ experience, and is a specialist in non-contentious Court of Protection matters, including deputyships for people who become mentally incapacitated through illness or personal injury.

Get in touch with Grainne on 020 7940 4060 or at grainne.feeney@anthonygold.co.uk