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What is the Court Of Protection?
A person has to have mental capacity to be able to do certain things, and there are different legal tests for capacity which apply to different types of decisions or transactions. For example, there is a specific test to determine whether a person has capacity to make a Will, which is different to the test applicable to make powers of attorney. Capacity is often difficult to determine and can fluctuate, or deteriorate over time - particularly as people get older or where they suffer with mental illnesses such as dementia or Alzheimer’s.
The law states that every adult has the right to make their own decisions and should be assumed capable of doing so, unless it is proven otherwise. Sadly however mental incapacity can affect any of us and, if the worst were to happen, an application to the Court of Protection may be necessary. The Court of Protection is a specialist Court based in London and its function is to make decisions on behalf of people who lack capacity and to ensure that their interests are properly protected.
If a decision needs to be made and a person is assessed as lacking mental capacity to make that decision themselves, then the principles of the Mental Capacity Act 2005 must be followed, so as to ensure that any decision made is in the person’s best interests.
There are different types of applications that can be made to the Court, depending on the circumstances and on the decisions that need to be made. The most common type of application is for the appointment of a Financial Deputy who, once appointed, can then manage the incapable person’s money and property. However, there are many other decisions the Court may need to make, such as where the person should live, what medical treatment they should receive or whether a Will should be drawn up for them
The application process can be quite involved due to the fact that the Court needs to properly assess the merits of any application and also assess the suitability of the applicant. The person applying to the Court will be required to submit relevant evidence and comply with Court procedures. As a result, Court of Protection applications can be lengthy and expensive
On a positive note however, Court of applications can often be avoided if a person has made a Lasting Power of Attorney, appointing people to make decisions for them in the event that they ever lose capacity in the future.
Joanne Jones, a Solicitor in our Private Client Department, talks about the Court of Protection:-