Lifetime Planning and Wills specialist, Sarah Loveless, explains the role of the Court of Protection, who can apply, and when an application should be made. Our team are available on 01225 755656, or by email. Alternatively, you can complete the Contact Form at the foot of this page.
What does the Court of Protection do?
You might have made a Lasting Power of Attorney (LPA) in preparation for a time when you may need help making decisions as a result of illness or accident. However, if you have not made an LPA, or your LPA does not give your attorney(ies) the authority to make a specific decision(s), an application to the Court of Protection will be required. The Court also deal with a host of other matters, some of which are listed below.
The Court of Protection was created by the Mental Capacity Act 2005 to make decisions on your behalf if you lack the mental capacity to look after your own affairs. An application must be made to the Court to make decisions concerning your health, welfare, property or financial affairs.
What is the role of the Court of Protection?
The Court of Protection can make various decisions on your behalf but must always act in your best interests. They may be asked to consider:
- whether you have the mental capacity to make a particular decision yourself;
- appointing a deputy(ies) to make ongoing decisions for you if you lack mental capacity;
- giving another person permission to make a one-off decision on your behalf if you lack mental capacity;
- making a decision or resolving a dispute about an LPA or Enduring Power of Attorney (EPA), including considering any objections to its registration;
- an application to make a statutory Will or gift;
- disagreements that cannot be settled by other means, such as by the appointment of an Independent Mental Capacity Advocate (IMCA);
- urgent or emergency applications where a decision must be made on your behalf without delay;
- making a decision about whether and when you can be deprived of your liberty under the Mental Capacity Act.
Who can apply to the Court of Protection?
Anyone can apply to the Court of Protection, but you should note the following:
- If you are the person the Court is being asked to make a decision about, you can make the application yourself, provided you are over 18, and the Court has the power to make the decision you are seeking.
- If you are under 18, your legal guardian can apply to the Court without your permission.
- Your deputy, attorney, or anyone named in a court order relating to the matter can apply without your permission.
- Members of your family, clinical commissioning groups, NHS trusts, and local authorities can apply, but they first need permission from the Court.
How much does the Court of Protection cost?
It is important to understand how costs usually work in the Court of Protection. In considering costs, the Court will generally draw a distinction between applications relating to property and financial affairs on the one hand, and those relating to health and welfare on the other. If the application relates to property and financial affairs, the person lacking mental capacity will usually have to pay the costs of the proceedings. Each party must generally bear their own costs in a health and welfare-related application.
However, the Court can make a different order if the circumstances justify that. For example, perhaps the Court considers that one party has acted unreasonably.
If the application contains both elements, the Court will usually apportion the costs between the two issues.
If the Court of Protection has appointed a deputy to deal with your property and financial affairs, certain payments to the deputy are required. A lay deputy is limited to recovering their out of pocket expenses, whereas a professional deputy (perhaps a solicitor) will be entitled to receive either fixed costs or for their costs to be assessed by the Court. If, however, a deputy is appointed to deal with health and welfare decisions, they are not usually able to recover their costs.
A party to an application is often represented by a solicitor. If so, that party will be primarily responsible for their solicitor’s costs, even if some or all of those costs are subsequently recoverable from another party.
In addition, there are fees payable to the Court of Protection. These are updated periodically, and details can be found on the government’s website.