The Court of Protection exists to look after the best interests of those who lack the mental capacity to make certain decisions for themselves.
The court has the power to determine if a person lacks capacity and decide what actions to take including the appointment of lay and professional deputies to act on the individual’s behalf.
The Court of Protection is a specialist court responsible for safeguarding the rights of those who have been deemed to lack mental capacity (known in Court of Protection proceedings as the “Protected Party”, or “P”) to make decisions for themselves.
The law states that every adult must be assumed to have capacity to do so unless it is established otherwise and, therefore, has the right to make his or her own decisions, regardless of any particular medical condition or disability they may have. It is also important to note that capacity is decision-specific, which means that even if a person is unable to take a decision in one set of circumstances, that does not mean that they do not have the capacity to take a different decision. Nevertheless, there are a variety of reasons an individual can lack capacity. For example, if a person suffers from dementia, has a learning disability, or suffered a brain injury, this may affect their capacity to take some decisions. It is also possible for a person’s capacity to fluctuate, and someone name be able to take a decision one day, but unable the next.
Whilst a person retains capacity, they can appoint one or more Attorneys through a Lasting Powers of Attorney (LPA) (or, prior to October 2007, an Enduring Powers of Attorney (EPA)) to act on their behalf when they lose capacity. A person who has appointed an Attorney under an LPA/EPA is known as a “donor”. Attorneys are appointed to deal with a donor’s Finance and property and/or Health and welfare and, once an LPA/EPA has been registered with the Office of the Public Guardian (OPG), the powers afforded to an Attorney in that way are extensive. Attorneys are obliged to act in the best interests of the donor and, as far as possible, to work with the donor in taking any decisions. If a person loses capacity and they haven’t already appointed an Attorney under an LPA/EPA, an application can be made to the Court of Protection to appoint a Deputy to carry out the same functions on behalf of a Protected Party.
Unfortunately, in some instances there are disagreements about what is in the donor’s best interests, or concerns are raised as to the conduct of the Attorney or Deputy. If it is not possible to resolve these disagreements between the parties, then an application can be made to the Court of Protection. For example, where it appears that an Attorney or Deputy is acting contrary to his or her obligations, the Court of Protection has the power to appoint a replacement Deputy. Such disputes can be particularly difficult to navigate given the often highly personal nature of the matter. However, our specialist contentious Court of Protection team can guide you through any problems that might arise, and we are particularly experienced in dealing with the difficult family dynamics that often underpin such disputes.
We can assist with:
If you have concerns about any of the matters referred to above, for initial advice or to arrange a meeting with one of our team, please email courtofprotection@bishopandsewell.co.uk or contact 020 7631 4141 and ask to speak to our Court of Protection team.
Alternatively, our Private Client department can assist if you need help with preparing an LPA, registering an LPA or EPA, or making a Deputyship Application where no LPA was in place when P lost capacity (an unopposed application). Please email privateclient@bishopandsewell.co.uk, or call 020 7631 4141 and ask to speak to the Private Client department.
The Office of the Public Guardian (OPG) is responsible for registering LPAs, EPAs and Deputyship Orders. They also supervise the conduct of the registered Attorneys and Deputies and can undertake initial investigations if concerns are raised about the conduct of an Attorney or Deputy. If the OPG considers that the matter requires the input of a court, it will refer the matter to the Court of Protection. The OPG cannot make decisions on behalf of a donor/P, this can only be done by the Court of Protection.
If you have received notice that an Attorney has applied to the OPG to register an LPA/EPA and you concerned that the Attorney is not acting or cannot act in the donor’s best interests or you consider that the donor did not have the requisite capacity to make the LPA/EPA, you may wish to object to the registration.
Alternatively, if an application is being made to appoint a Deputy to act on behalf of P and you do not consider that they are a suitable candidate to act as a Deputy, then you may want to raise an objection to the application.
The legal starting point is that an individual must be assumed to have capacity unless it is established otherwise. Under the Mental Capacity Act 2005, “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”
If you know someone who is struggling to make decisions in this way, it is worth noting that a person is deemed to lack capacity to make a decision if they cannot understand the supporting information relevant to the decision, they cannot weigh the information in order to assist them making the decision, they cannot retain the information and they are unable to communicate their decision, even with support.
If you are concerned about someone’s capacity, or about an assessment of capacity that has been made, it may be necessary to obtain an expert report to determine the position.
We can help advise on any Attorney dispute. Often, the dispute between Attorneys will be regarding the validity of an LPA/EPA. For example, was it validly executed? Was it created without undue influence placed on the donor? Did the donor have the requisite capacity?
We also regularly advise on disputes between Attorneys with respect to how one or more Attorneys are dealing with the donor’s affairs. For example, spending by an Attorney, investment decisions, the sale and management of the donor’s property or gifts.
We can also advice on welfare disputes, the details of which will be specific to the particular donor, but can involve matters such as:
If it is not possible to resolve these matters between the parties, it may be necessary to make a best interests application to the Court of Protection in order that the court can make the relevant decision.
If the donor retains capacity, they can revoke their LPA/EPA which will remove the Attorney’s authority to act on their behalf. However, if the donor lacks capacity, an application to the Court of Protection will need to be made to remove the Attorney.
Below is a non-exhaustive list of examples of conduct that has led to the removal of an Attorney:
It is important to remember that each matter turns on its own facts and you should seek professional advice if you are unsure whether an Attorney or Deputy can be removed, and to assist with any future application.
If the Protected Party did not appoint an Attorney or register an LPA/EPA, the Court of Protection can appoint a Deputy to look after their affairs. An individual can apply to be a Deputy or the Court of Protection has discretion to choose a Deputy, but the Court of Protection Judges prefer to appoint a friend or relative rather than a stranger.
You can report your concerns to the OPG. This can be done directly, or we can assist you if you need further information about understanding duties and obligations of an Attorney, advice on whether they have acted unlawfully and compiling details of concerns for OPG. If the OPG considers it appropriate, they will undertake an investigation.
