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).

Applications to the Court of Protection

General

Applications to the Court of Protection may be made for several reasons, including to object to a power of attorney or to be appointed as a Deputy.  Some tasks do not need the Court’s permission, such as those involving personal care or health, so long as they are carried out in the best interests of the person.

Assessing Capacity

Before applying to the Court you may have to assess whether somebody has capacity.  For example, if you encourage somebody to make a certain decision, but their decision is not one that you would have made or is one which you think is simply wrong, this does not mean that the person lacks capacity.  Regard should be given to the circumstances surrounding when and how the decision was made, and as much help as possible should be given to aid a person in the decision-making process.  Guidelines on how to reach a decision on a person’s mental capacity can be found in the Mental Capacity Act 2005 Code of Practice. 

Making an Application

It may be necessary, before making an application to the Court, to first ask the Court’s permission to make the application.  Permission is not generally needed if the matter concerns the incapacitated person’s property, save for in certain instances involving trustees and wills.  If the matter concerns the incapacitated person’s personal welfare then it will be necessary to first ask the Court’s permission to make an application.  If you do not know what to do, then you can always contact the Court and ask for its advice.  Depending on the type of application being made, you will need to complete an application pack, of which ten are available.  Fees are also payable to the Court, and are not insubstantial, so this will also have to be considered.  The current fee (March 2010) for making an application or for asking for permission to make an application is £400, but this should be checked again in advance of going ahead with proceedings.  The fee is payable by the applicant, that is, the person making the application on behalf of the person incapacitated, but they might be able to get it back.