Upholding Rights in the Court of Protection
The Court of Protection (COP) is a specialist Court that serves people who lack the capacity to make decisions for themselves. This includes (but is by no means limited to) dementia and Alzheimer’s sufferers, individuals who have suffered brain injuries and people with learning difficulties. The Court only has jurisdiction if the issue that needs judicial guidance is something that the person in question (“P”) lacks the capacity to decide on themselves, and there is no power of attorney authorising someone else to decide on their behalf.
To start any action in the COP, you must be a person interested in the welfare of P – typically a close relative, close friend or carer. You must also demonstrate that P has lost capacity to make certain decisions, because a person is presumed to have capacity unless proven otherwise. Capacity is not a one-size-fits-all concept, and it is decision-specific. For example, a person can have capacity to make day-to-day decisions about spending small cash sums, but lack the capacity to form a complicated trust to manage their estate.
The COP operates on its own rules, and it is intended to be collaborative rather than adversarial – meaning that it is there to try and solve problems rather than settle arguments. However, in certain circumstances it can invoke the High Court’s jurisdiction to deal with urgent applications (e.g. if someone caring for the protected party represents a danger to them and an injunction is needed).
In every COP case, the central and all-important question is whether the Court considers something to be in P’s “best interests”. The best interests criteria is multi-faceted, and can be found at section 4 of the Mental Capacity Act 2005.
The Court will consider:
- The extent to which P has lost capacity;
- P’s present and past wishes and feelings on a particular issue;
- P’s general beliefs and values;
- Any factors P would take into account when making a decision if they could;
- Whether P can be involved in the decision-making process and if so, how this should be done;
- The views of any individual named by P as a person to consult;
- The views of any other people caring for P or concerned with P’s welfare;
- All relevant circumstances of the case; and
- If there is a life-sustaining treatment decision, avoid making determinations based on a motivation to bring about P’s death.
Someone’s age, gender and personal characteristics will be discounted by the Court when making a decision on P’s behalf.
The best interests criteria does impose a requirement on the Court to consider the views of people who are in some way invested in P’s welfare. This generally extends to close relatives, P’s spouse or civil partner, close friends and any individual(s) caring for P. When any individual or organisation begins action in the COP, there is an obligation to notify those people and typically, the Court expects at least three interested parties to be told about a Court of Protection application. This means that if you have a close relative who has lost capacity and another person begins an action about them in Court, you will normally be told about it and given the opportunity to consent, object or become a party to the proceedings.
This is done partly because the Court needs to hear from you, but also to safeguard P. It is not unheard of for people to try and apply to the COP covertly so as to exclude relatives or friends of P’s with whom they do not get on, or to bring proceedings with an ulterior motive.
In certain limited cases, emergency applications can be made to the COP. This can happen when P is at risk of financial abuse from an attorney or deputy and action needs to be taken to stop them from dealing with banks and institutions, or when a health and welfare decision needs to be made under urgent circumstances and consensus cannot be reached.
If you are involved in these proceedings and unsure of your position, you should seek legal advice from Court of Protection solicitors, and if necessary, representation. In property and affairs proceedings, you can usually recover most of your legal costs when the proceedings have concluded, although this is not usually the case in health and welfare cases.
Dealing with situations involving the Court of Protection can be a challenge, at a time when you’re likely facing some difficult and emotional choices. Whether you’re a concerned family member, a carer, or a friend, seeking legal advice can help you navigate the complexities of the Court of Protection and help you understand the options available.
Reach out to our team of friendly and approachable Court of Protection experts for specific advice on your unique set of circumstances using the button below.
