The Court of Protection: A myth-busting exercise

Our Court of Protection, established only eleven years ago on 1 October 2007, hears cases governed by the Mental Capacity Act 2005. When compared with our other courts, the Court of Protection is still in its infancy and therefore most people may not know it exists unless they have been involved in a relevant case or seen reference to it in the news.

Due to this unfamiliarity, there are some common myths and misunderstandings about the Court of Protection which we can help to dispel.

1. Is the Court of Protection secretive?

The Court of Protection makes decisions to protect some of the most vulnerable individuals in our society. Prior to January 2016, these hearings were private to ensure anonymity of the protected party, ‘P’. This is important to stop vulnerable people having their problems and vulnerability broadcast to all and sundry. However, following concern about the lack of transparency, a Pilot scheme was launched to allow the public to attend hearings. During the Pilot scheme, it was observed by the Ministry of Justice that anonymisation of each case held in public was onerous on the legal teams and delayed cases significantly. As a result, the general rule in the Court of Protection Rules 2017 remains that hearings are to be held in private. However, the Court has the power to order a hearing to be held in public or reported if it sees fit. In very rare cases the Court will drop anonymity of some parties, normally the person seen as exploiting the vulnerable person.

2. Who gets to decide if a vulnerable adult lacks capacity?

Only the Court can find a person lacks capacity, however they normally do this based on expert evidence. Ordinarily, this will be a medical practitioner, but it can also depend on which professional knows the person best, for example a registered social worker. An experienced judge considering the application will need to be satisfied that all elements of the test for capacity were carefully considered:

• Is the person unable to make a decision? If so:
• Is there an impairment or disturbance in the functioning of the person’s mind or brain? If so:
• Is the person’s inability to make the decision due to the identified impairment or disturbance?

The fundamental principle of the Mental Capacity Act 2005 is that capacity is presumed. It is crucial to remember that a person cannot be deemed to lack capacity simply because they have made an unwise decision.

3. Why can anyone apply to be a Deputy?

In theory, anyone over the age of 18 can apply to be a Deputy, but the Court will need evidence that the person applying to be Deputy does not have any criminal convictions, bankruptcy arrangements and is close enough to P to manage their affairs well. If a lay Deputy does not seem appropriate, a professional Deputy, e.g. a solicitor or an accountant, would need to be appointed instead.

4. Once a Deputy is appointed, can they make any decision they want to make on behalf of P? Where’s the safety in that?

No, the Court will advise on what decisions a Deputy can/cannot make. The Deputy must only make decisions that are in P’s best interests and should keep a record of these decisions for the Court. The Deputy is supervised by the Office of the Public Guardian, or the ‘OPG’, and is obliged to report to them annually. The OPG will also investigate allegations of abuse by a Deputy to ensure the safety of P. However, any person connected to the vulnerable person can apply to the Court to set aside a Deputyship Order. Indeed, as the OPG works very slowly most of the application against Deputies are by the family of the protected person. Each Deputy much take out a security bond on behalf of P, i.e. an insurance premium, to ensure P’s estate is protected if the Deputy mismanages or wrongfully appropriates P’s assets.

5. I have heard a Deputyship Application can take more than 6 months to be issued, but that is useless for me if there is an emergency.

It is possible to apply to the Court for an urgent Court Order when there is an emergency, such as someone’s welfare being at risk. If an application has already been submitted, you can request an urgent interim Order for a specific decision relating to P. There is no further fee for this if an application has already been submitted.

If you would like some further advice, please do not hesitate to contact us on 0207 940 4000.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*