The Court of Protection

What is the Court of Protection?

The Court of Protection, initially an Office of the Supreme Court of England and Wales, was set up to protect and administer the property of people (usually adults but in rare instances children also) who are incapable, due to mental incapacity, of dealing with these matters themselves.  Consequently, the court makes decisions for those people who do not have the capacity to do so themselves.  It can also appoint people, known as Deputies, to make these decisions.  In addition to matters concerning property, the court has the power to deal with a person’s health and personal welfare, and their financial matters.  Its current legislative basis is the Mental Capacity Act 2005, s45 of which stipulates that the Court of Protection is a superior court of record.  The Court also has the power to set precedents.

The Court of Protection’s jurisdiction

When exercising its jurisdiction, the Court of Protection can:

  • Declare whether someone has capacity to make a decision for themselves
  • Make declarations, decisions or orders on financial matters for those who cannot do so themselves
  • Appoint a Deputy to make these decisions   
  • Remove Deputies or Attorneys who do not carry out their duties
  • Decide on the validity of a Lasting Power of Attorney or an Enduring Power of Attorney
  • Hold hearings on objections to Lasting or Enduring Powers of Attorney

The Court also has a Charter, which details the standards it must adhere to when in session.  The Charter does not deal with what type of decisions people can expect from the Court, but it is a principle of the Court that it must always act in the best interests of the person who lacks capacity.  The Court also has the same powers, rights, privileges and authority as the High Court, and its jurisdiction is exercised by one judge who is either the President of the Family Division, the Chancellor of the High Court, a puisne judge of the High Court or a circuit judge or a district judge (of the county court).

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For more information on:

  • Applications to the Court of Protection
  • General
  • Assessing Capacity
  • Making an Application