What is it?
The Court of Protection (CoP) is a specialist court created by the Mental Capacity Act 2005. It deals with matters relating to people who lack capacity to make certain decisions whether these relate to everyday decisions such as managing a bank account or perhaps for specific legal issues such as personal injury claims. Its aim is help vulnerable people by making the decisions for them or by appointing someone else (a deputy) to do so. It has got the same powers as the High Court and it applies the statutory provisions in its declarations.
What matters does it relate to?
The CoP deals with issues such as personal property, health and finances. The court’s powers include:
- Decisions on the mental capacity of a person to make a particular decision (such as making a will)
- Decisions on financial or health matters of a person in question if they are unable to do so themselves
- Appointment of a deputy to make decisions for a person who is unable to do so themselves
- Removal of a deputy (or an attorney) who did not carry their duties in the correct manner (or failed to carry them out at all)
- Decisions on the validity of the existing power of attorney
- Hearings of cases concerning any objections regarding the registration of the power of attorney
What is not covered by the CoP
If you take care of someone who lacks capacity to make decisions you do not have to apply to the CoP with every issue that requires addressing. You can make certain small decisions such as those regarding personal care as long as it is in the best interest of the person you care for. Local authorities and doctors are entitled to making some decisions relating to the patient’s treatments or tenant’s accommodation especially if the issue needs addressing urgently.
How to apply?
Before you apply
The first step before you apply to the CoP should be to give the vulnerable person all the time, encouragement and assistance to help them make their own decisions. They should be given all the relevant information which might help them to make their choice and explain everything in a way they are able to understand. You should try to support them without pressurising them into making their decision even if you do not agree with their choice.
If you reasonably believe that despite all your efforts the person is lacking capacity to make their decision on their own, then you should make an application to the CoP. You might need a permission from the CoP in order to apply, usually for the matters relating to the appointment of trustees, wills or personal welfare of the person in question. If the decisions relates to financial affairs or property matters you do not usually need the CoP’s permission to apply. It is best to contact the CoP if you are unsure whether or not you need their permission to make an application. There are 10 different application packs depending of the type of matter the decision is concerned with and you should make sure that you choose the correct one.
There is an application fee payable to Her Majesty’s Courts and Tribunals Service which varies according to the complexity and nature of the matters heard by the court. The responsibility for paying the fees is on the person who is making the application. You might be exempt from paying the fee if you are on a low income or receiving certain benefits.
The CoP is governed by the Charter available on the internet, it explains the powers of the CoP and describes the process of decision-making, the hearing and what to do if you wish to complain about the service you received.
For more help and assistance on applications or dealings with court of protection issues, take specific legal advice.