The Court of Protection (COP) is a specialist court which deals with all issues relating to people who lack the capacity to make decisions for themselves. The Court is guided by the Mental Capacity Act 2005 and is duty bound to act in the best interests of the patient at all times. There are many reasons why a person may be unable to manage their own affairs, such as injury following an accident, the onset of dementia, or a mental health disorder.
Family members who feel that a relative is no longer capable of making decisions in relation to their own welfare can make a Court of Protection application. The Court of Protection will then appoint a Deputy, often a relative but in some circumstances an appointed professional, such as a solicitor, to act on the individual’s behalf. A Court of Protection Order gives the Deputy the authority to deal with the affairs of the mentally incapacitated person.
Despite the Court being set up to protect these vulnerable individuals, its function has come under scrutiny in the media in recent months. This is often due to cases where the Court insists that large sums of money are placed within an account that is run by the Court itself, taking freedom away from the Deputy and generating little income. Further, it may then be necessary to apply to the Court for release of the monies that are held; the cost of the application and the length of time this process takes can be considerable.
The truth of the position is that the Court of Protection is a safety net to protect some of the most vulnerable members of our society. This requires a cautious approach to be taken, albeit one that is frustrating for family members.
The simplest way to avoid the need to involve the Court of Protection would be to make a Lasting Power of Attorney (“LPA”) before problems arise. The Donor (the person donating the power to another) must have capacity to make provision for a time in the future where they may no longer have capacity.
Though there are formalities to making an LPA, (it must be registered with the Office of the Public Guardian for it to be valid) it is a far simpler process than obtaining a Deputy Order from the Court of Protection. It allows the Donor to put their affairs in order during their life time, providing reassurance that a structure is in place if help is needed in the future.
For more information or to discuss either a Court of Protection or Lasting Power of Attorney application, please contact us.
Emma Fuller is head of the private client team at EHL; our solicitors in Loughborough are experts in their fields and dedicated to quality client care. If you would like to find out more about our solicitors in Loughborough please contact us.
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