Articles & Updates

Clients often ask us what the Court of Protection is about, and how it works.  Emma Holt, Head of our Medical Negligence team, provides some answers.

When someone is unable to handle their financial affairs by virtue of mental incapacity, the Court of Protection can appoint a 'financial deputy' to handle those affairs on behalf of that person.  In this way it is possible to ensure that the incapacitated individual retains their financial independence but at the same time has someone with their best interests at heart to look after all aspects of their finances.

The administrative arm of the Court of Protection is the Office of Public Guardian.  A person who is incapacitated and thus falls under the jurisdiction of the Court of Protection is known as a 'protected party'.  An application to the Court of Protection is normally made by a close family member or professional, depending on the circumstances.  A statement of assets and income, a medical certificate and a deputy's declaration have to be filed.  The medical certificate can be completed by a GP or, in complex cases, by a specialist.

The deputy's declaration has to be filled in by the proposed deputy and is needed to assess for suitability of the person as deputy.  The completed forms are sent off to the court and a date is set to examine the application.  Interested parties are notified.  Normally applications are dealt with by post but if there are serious objections then there can be a formal hearing.  This, however, is quite rare.

Once the order is made, the deputy is authorised to deal with all aspects of the person's finances subject to the terms of the order.  Day-to-day financial matters such as collecting benefits and spending on day-to-day living expenses require no further authorisation but major items do.  A budget is normally agreed between the deputy and the client, which ensures a satisfactory level of spending for day-to-day needs, household bills etc.  However, larger items such as property purchases will need special approval.

Expenditure has to be made with reference to long term affordability.  The whole purpose of the Court of Protection is to help the client but only within affordable limits.  The deputy will plan ahead, by planning income, expenditure and the investment of the funds, so that the client's long term future is secure.  This can sometimes involve difficult decisions.

When is it appropriate for a person to become a 'protected party'?  The current law is set out in the Mental Capacity Act 2005.  There is no universal test of mental capacity, the legal test to be applied relates to the decision made or to be made.  Capacity depends on the individual's understanding of the decision and its consequences rather than whether the decision would seem 'wise' to someone else.  Capacity is a question of fact to be determined by the court on all the available evidence of which the views of a doctor are only one part.  So it isn't simply a medical decision. 

The legal system starts by presuming that people are capable of making decisions.  It might be easy if people could be labelled as either capable or incapable according to a simple test of capacity but this is not the reality of life.  Capacity can change depending on the act or decision in question.  The issue is, is this person incapable of this particular act or decision?

The issue of capacity will be increasingly relevant in the future.  More people lack mental capacity because the population is living longer and therefore more people are experiencing conditions of old age such as dementia.  More brain damaged babies now survive.  There is also more money involved due to greater home ownership and savings and larger damages awards in the courts.  This creates greater challenges for the legal system in dealing with questions of capacity.  Here at Pannone we are able to deal with these as part of our complete service to our injured clients.

If you would like more information on how we can help you in our Court of Protection team please contact Hugh Jones, Head of the Court of Protection team, on 0800 840 4929 or by email hugh.jones@pannone.co.uk