Court of Protection: The complete guide

November 4, 2017, By

Whether it is in support of a loved one or family member, the Court of Protection is something that more and more of us find ourselves dealing with as we get older.

It may be that a close relative or friend is having trouble with their money or personal health due to an illness, disability or old age, and it is becoming increasingly clear that they are unable to take care of themselves. At times like these, families and friends are often looking to support each other wherever possible – and the Court of Protection can play a big role in that.

What is the Court of Protection?

The Court of Protection is the administration that grants authority over the property, finances and general welfare of an incapacitated person – referred to as the protected party. If it is deemed advisable by a close family member or professional, an application may be submitted to the Court that asks for partial or complete jurisdiction over their daily affairs.

A successful ruling by the Court grants legal authority to make important decisions regarding the protected party’s health, welfare, property and finances to an appointed relative, close friend or solicitor. This is often a necessary action to safeguard the rights of someone who lacks the sufficient mental capacity to make rational decisions because, left unchecked, they may be at risk of causing damage to themselves in some way.

Court of Protection – Understanding eligibility

A person must be of sound mental capacity when an application is submitted to the Court of Protection. But while there is no universal test to determine the precise state of somebody’s mental capacity, the ruling tends to take into account their ability to understand the consequences of important decisions. Each case must be judged on a different set of medical criteria and physical evidence that may or may not support the application in question.

Many Court of Protection cases involve elderly people who are struggling to manage their affairs, but we’re also seeing more and more cases that deal with younger people and children who have suffered an injury that has left them incapacitated in some way. The Court also has the power to grant a permanent, temporary or standalone ruling depending on the context of the situation.

What is deputyship?

The process of transferring authority over the property, finance or health care of the protected party to a family member or loved one is known as deputyship, whereby the appointed deputy acts in the best interests of the protected party whenever necessary.

It is the responsibility of the deputy to support a person’s health and welfare by arranging adequate medical care or treatment that they wouldn’t have been able to receive otherwise. The deputy may also look to secure the party’s financial affairs by planning their daily expenditure and longer term investments. Sometimes this leads to difficult decisions, though they must always be judged to be in the best interests of the protected party.

How to submit an application to the Court of Protection

If you have concerns regarding a person’s ability to look after themselves and wish to support them, it’s important to seek the advice of a legal expert who understands the Court of Protection processes inside and out.

Of course, this is especially vital if you notice the situation is deteriorating quickly. In more urgent cases, it is possible to send an emergency interim order to the Court of Protection to pass an immediate ruling, such as when a person’s health is at stake and important decisions have to be made quickly. There is no immediate fee to submit an urgent application, though of course the severity of the matter must be justified.

A record of the property, income and other assets belonging to the protected party must be declared, along with a formal notice given by the deputy that states their case and reasons for submitting to the Court of Protection. There must also be a medical certificate that is signed by a GP or specialist consultant. It’s also important to note that you cannot apply to the Court if the protected party already has a registered deputy. In such cases, you must choose to support or legally oppose the existing deputy in their decisions.

Making difficult decisions

Wherever possible, it is the responsibility to ensure the deputy communicates the context of important decisions to the protected party and any other family and friends that wish to support. This tends to require an established method of communication that is familiar and that allows plenty of time for the person to understand key information. It may even involve communication through sign language, reactions to images, nodding or blinking – whatever gets the message across.

When this is not possible, a deputy would do well to think about what their relative or friend would have decided to do in certain situations. Along with any well-known religious or political views, many of our clients also note that finding things such as old letters, personal belongings or financial budgets can help them to act in the best possible interest of a person.

If there is enough time to do so before an important decision is made on the person’s behalf, it is wise to consult the person’s family and friends to ensure a clear agreement is eventually reached. In the event of a dispute, a mediation or social help service may be able to find a resolution through which everybody can move forwards.

If you’re thinking about applying to the Court of Protection for whatever reason, we recommend you act swiftly and get in touch with a legal expert sooner rather than later as they can ensure the fundamental rights of vulnerable people are upheld.