Avoiding problems with the Court of Protection

Have you ever thought about what would happen if a loved one lost the ability to make decisions for themselves? What if a relative had a stroke or suffered from dementia? Some people will want their loved ones to make decisions for them and appoint them as their attorney through a Lasting Power of Attorney (LPA) before they lose mental capacity. But what is the position when someone has not done this?

Floyd Porter, mental health and capacity lawyer at Miles & Partners solicitors in the City of London explains that this is where the Court of Protection comes in:

“Many people are unaware that the Court of Protection even exists, let alone what its powers are, until they encounter it when a relative or partner loses mental capacity to make certain decisions.” says Floyd.

The Court of Protection is sometimes referred to as a ‘secret’ court because hearings take place behind closed doors; however, this reference to secrecy is not really the case. Members of the public are entitled to attend Court of Protection hearings with some restrictions to protect the privacy of the individual in relation to whom decisions have to be made. The court deals with all issues affecting vulnerable and incapable adults, from finances to medical treatment and residence.

The Court of Protection has the power to decide whether you are a suitable person to look after your loved one’s money and to make decisions about their health and welfare and where they should live. If it decides that you are not suitable it may appoint a professional person from a special panel such as a solicitor or local authority to take this role instead.

For the court to consider whether you are a suitable person to make decisions for your loved one after they become mentally incapable, you must apply to the court for a ‘deputyship order’. You can apply to become a property and financial affairs deputy or a health and welfare deputy or both.

To apply for a deputyship order, you will firstly need to obtain medical evidence in the form of a report from a doctor, psychiatrist or other relevant medical practitioner regarding the mental capacity of your relative or partner. It is likely that you will be charged a fee for this report. There are then several forms you will need to complete, which give details to the court about you, the type of order you are asking for and the person on whose behalf you are applying. The completed forms need to be sent to the Court of Protection with the relevant court fee. It might be possible to apply for a fee reduction or exemption if you are on a low income.

Various family members, including the person who has lost capacity, must be told about your application and given a period of time in which to object. It usually takes the court two to three months to make an order, but sometimes it can take longer. During the period in which the court is considering what to do you cannot make decisions in relation to your loved one’s property and affairs or, in the case of welfare, can you give instructions about their medical treatment or healthcare needs. Your views should be taken into account but they are not binding.

If you want to dispute a medical or care decision, or need access to funds during this time, you may have to apply to the court for a one-off order stating that it is urgent.

When considering the final order, the court will decide whether you should be appointed as the deputy, or whether it should be a different family member, a friend or a professional. If you are appointed as the deputy for your loved one, your actions will be supervised by the court and you will have to ask the court’s permission to do various things.

The whole process of becoming a deputy usually takes between three and six months, sometimes longer, and can cost a few thousand pounds. If appointed as the property and affairs deputy, the costs of making the application may be recoverable from the property of your loved one. At Miles & Partners, we can make the process as straightforward as possible for you. We can look after the whole process or advise you on how to complete the necessary forms and offer assistance if you encounter any difficulties.

For a confidential discussion about deputyship, or any of the issues raised in this article, please contact Floyd Porter in the mental health & capacity team at Miles and Partners solicitors in London Liverpool Street on 020 7426 0400 or email fp@milesandpartners.com.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.