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What is the Court of Protection?

Jun 17, 2021

The Court of Protection is a specialist branch of the Family Division of the High Court. It is based in London but there are various ‘hubs’ around the country. It deals with decisions or actions taken under the Mental Capacity Act. The cases are mostly heard by District Judges and a Senior Judge, sometimes a High Court Judge.

What does the Court of Protection do?

  • Decides, after considering the available evidence, if someone lacks the mental capacity to make decisions for themselves in relation to their financial affairs and personal welfare
  • Appoints a ‘Deputy’ who is a person who can make financial decisions for a person who has lost mental capacity, and in some cases for welfare decisions.
  • Considers applications to make a Statutory Will (a Will that is made for someone who lacks mental capacity) and applications to make a gift on behalf of someone who lacks the mental capacity to make the gift themselves.
  • Considers issues about Powers of Attorney and considers applications by those who object to a Lasting Power of Attorney in some way.
  • Considers emergency applications where a decision has to be made without delay.
  • Decides about when someone can be deprived of their liberty under the Mental Capacity Act.

The Court of Protections broadly considers it’s work in two main areas; property and affairs and welfare – although sometimes these overlap. The Court must always act in the individual’s best interests and this is reiterated time and time again.

Some interesting cases heard in the Court of Protection are:

A Mental Health Trust v ER & Anor

This case concerned a 49 year old woman (ER) with severe anorexia. The Judge had to decide whether she had capacity to make decisions about her treatment and to determine her best interests. Capacity assessments were carried out and it was determined that ER did not have capacity to make decisions about her treatment. The Judge, albeit considerably reluctantly, decided it was not in ER’s best interest to force her to have treatment. However, the Court stated that ER should receive better support in the coming months and approved a short-term care plan to be settled at a future hearing.

NHS Trust v An Expectant Mother (M)

This case involved a pregnant 21 year old woman who refused to go to hospital to give birth due to severe agoraphobia. This terrible illness is classified as a mental illness within the meaning in the Mental Capacity Act. M had behavioural problems as a child and in the previous years she had only left her home a handful of times. M made it clear that had it not been for the agoraphobia then she would have opted for a hospital birth. It was to be considered whether it was in M’s best interests to be transferred to hospital for the birth. Considering all of the facts of the case (not all of which are detailed in this summary) the Court decided that it would be in her best interests to give birth in the hospital. M subsequently went into labour and was given some sedation after some initial slight resistance to travel to hospital. Hours after she gave birth to a healthy baby boy and travelled home a couple of days later.

Summary

The role played by the Court of Protection is invaluable and protects those who sadly cannot sometimes protect themselves. At Herrington Carmichael we work closely with the Court when our clients need our advice and support at times of difficulty. Please contact us for further advice on the issues raised in this article.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to your own particular matter before action is taken.

Jodie Sainsbury

Jodie Sainsbury

Paralegal, Private Wealth & Inheritance

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