- February 3, 2018
- By Alexandra Knipe
- 0 comments
What is the Court of Protection?
The Court of Protection is a specialist Court in London dealing exclusively with financial and welfare matters of incapacitated individuals. It was the Mental Capacity Act 2005 which provided the much-needed structure to the Court rules and defined the powers of the Court when making determinations on the lives of often very vulnerable individuals.
The Court has not always had a positive reputation with the press historically labelling it ‘secretive’ and ‘sinister’ – these accusations often stemming from the nature of its powers and the subject matter it deals with; or from a lack of understanding of the protection to the vulnerable that the Court in fact provides. The Court has attracted fascination and it is important to understand the extent of its powers and the impact that the decisions made in the Court can have on individuals and their families.
The Court of Protection has the power to make determinations about whether an individual has capacity to make a specific decision (or series of decisions) for themselves. The Court has the power to make a variety of determinations for both adults and children (in circumstances where it is reasonably proven that the child will not regain capacity into adulthood).
The most common orders made in the Court of Protection are Property and Affairs Deputyship orders – which appoint an individual to act as Deputy on an incapacitated person’s behalf for a variety of financial matters. That Deputy will have a duty to collate, manage and supervise all of the incapacitated person’s property and affairs during the period that they are unable to do this themselves. This might be a temporary arrangement or relatively permanent, with the issue of capacity being kept under constant review.
The Court has the power to authorise the Deputy to buy or sell property; carry on a business or profession on behalf of an incapacitated person; discharge a person’s debts or pay for their care or treatment. In some circumstances, the Court can authorise the Deputy execute a Will on the incapacitated person’s behalf, change the contents of an existing Will or even conduct legal processing in the name of the incapacitated person.
Deputies can be lay or professional but where the asset value of the incapacitated client is significant, or where their wealth is derived from a specific source (such as a Personal Injury or Clinical Negligence Compensation), the Court often likes to see a professional involved to help manage the daily affairs and finances. We are appointed to act as professional Deputies for many clients and have teams dedicated to dealing with the elderly, vulnerable and catastrophically injured.
All Deputies are supervised by a separate body known as the Office of the Public Guardian where accounts of transactions, bank statements and records of all financial decisions made by the Deputy must be disclosed.
We frequently make successful applications to the Court of Protection to help support those with difficulties in managing their affairs caused by a range of illness such as dementia, autism, brain injury, personality disorders, mental health issues or other associated diseases of the mind.
Many of my clients approach me because they are concerned about a relative who may be deteriorating mentally and no longer able to cope with their affairs. Other clients notice that an elderly or vulnerable relative, neighbour or friend is being exploited and they ask me to give advice or help intervene. The Court of Protection has the power to investigate any financial irregularities or the exploitation of vulnerable individuals.
The Court of Protection also deals with Welfare determinations. This might include making a decision on where a person should live; with whom they should have contact; whether they can or should consent or refuse specific medical treatment or medication; whether they should continue living at home or whether they should move into a care home. These are important decisions that affect the most fundamental aspects of a person’s life.
The Court of Protection will not make a determination on any of these issues lightly. Any application to the Court must be supported by medical evidence to show that the proposed course of action is in the incapacitated person’s best interests. Family members are in most cases notified that a particular application is to be considered by the Court and will be invited to put forward their views or make representations to the Court. The Court’s main duty however will remain to reaching an outcome that is in the best interests of the vulnerable person ensuring that they are adequately protected from exploitation or abuse.
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