Navigating the Court of Protection: a guide for families

court-of-protection

When a loved one is unable to make decisions for themselves due to impaired mental capacity, families may need to engage with the Court of Protection. This court plays a crucial role in safeguarding the rights and welfare of individuals who lack the capacity to make certain decisions.

What is the Court of Protection?

The Court of Protection is a specialist court in England and Wales that makes decisions on financial or welfare matters for people who cannot make decisions at the time they need to be made¹. This lack of capacity could be due to conditions such as dementia, brain injury, or severe learning disabilities².

When is involvement with the Court of Protection necessary?

Families might need to apply to the Court of Protection in situations where:

  • There is no lasting power of attorney (LPA) in place, and decisions about the person’s health, welfare, or financial affairs are required³.
  • Disputes arise regarding the person’s care or treatment, and a legal resolution is needed⁴.
  • A decision is needed about where the person should live or what care they should receive⁵.

Key functions of the Court of Protection

The Court of Protection has several responsibilities, including:

  • Deciding whether a person has the mental capacity to make a particular decision⁶.
  • Appointing deputies to make decisions on behalf of someone who lacks capacity⁷.
  • Giving people permission to make one-off decisions on behalf of someone else⁸.
  • Handling urgent or emergency applications where a decision must be made without delay⁹.
  • Making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration¹⁰.

Appointing a deputy

If a person lacks capacity and has not appointed an LPA, the Court of Protection can appoint a deputy to make decisions on their behalf. Deputies are usually close family members or friends, but in some cases, a professional may be appointed¹¹. The deputy’s powers are defined by the court and are subject to ongoing supervision to ensure decisions are made in the best interests of the individual¹².

How to apply to the Court of Protection

Applying to the Court of Protection involves completing specific forms and providing detailed information about the individual’s circumstances. The application process can be complex, and errors can cause delays, so it is often advisable to seek guidance from professionals experienced in this area¹³.

Supporting your loved one through the process

Navigating the complexities of the Court of Protection can be challenging. Engaging with qualified professionals, such as independent social workers, can provide valuable support and guidance. They can assist with assessments, care planning, and the application process, ensuring that your loved one’s rights and best interests are upheld.

For more information or assistance with matters related to the Court of Protection, Birch Social Work Consultancy can help, which offers comprehensive services tailored to individual needs.

Understanding the role and processes of the Court of Protection empowers families to make informed decisions, ensuring the well-being and dignity of their loved ones.

References

  1. Ministry of Justice (2023) Court of Protection: what it is and what it does. Available at: https://www.gov.uk/courts-tribunals/court-of-protection (Accessed: 3 February 2025).
  2. NHS (2024) What is mental capacity? Available at: https://www.nhs.uk/conditions/mental-capacity/ (Accessed: 3 February 2025).
  3. Office of the Public Guardian (2023) Make a lasting power of attorney. Available at: https://www.gov.uk/power-of-attorney (Accessed: 3 February 2025).
  4. Social Care Institute for Excellence (SCIE) (2023) The Mental Capacity Act: a guide for families. Available at: https://www.scie.org.uk/mca/ (Accessed: 3 February 2025).
  5. Age UK (2023) Making decisions for someone else. Available at: https://www.ageuk.org.uk/information-advice/money-legal/legal-issues/managing-affairs-for-someone-else/ (Accessed: 3 February 2025).
  6. Mental Capacity Act 2005, c.9. Available at: https://www.legislation.gov.uk/ukpga/2005/9/contents (Accessed: 3 February 2025).
  7. Court of Protection Rules 2017, SI 2017/1035. Available at: https://www.legislation.gov.uk/uksi/2017/1035/contents/made (Accessed: 3 February 2025).
  8. Citizens Advice (2023) Who can make decisions if you lack mental capacity? Available at: https://www.citizensadvice.org.uk/family/living-together-and-marriage/decisions-for-someone-who-cant-make-decisions-themselves/ (Accessed: 3 February 2025).
  9. GOV.UK (2023) Make an urgent or emergency application to the Court of Protection. Available at: https://www.gov.uk/emergency-court-of-protection (Accessed: 3 February 2025).
  10. Public Guardian (2023) Objecting to a lasting power of attorney (LPA). Available at: https://www.gov.uk/object-to-an-lpa (Accessed: 3 February 2025).
  11. Court of Protection (2024) Applying to become a deputy. Available at: https://www.gov.uk/become-deputy (Accessed: 3 February 2025).
  12. The Law Society (2023) Court of Protection: guidance for families. Available at: https://www.lawsociety.org.uk/topics/private-client/court-of-protection (Accessed: 3 February 2025).