Mental Capacity Act 2005

A general guide on how the Mental Capacity Act affects you and how you can plan ahead for when you no longer have the mental capacity to make decisions for yourself. Applies to England and Wales.

Court of Protection

What is the Court of Protection?

The Court of Protection is a court that deals with decisions or actions taken under the Mental Capacity Act.

You or someone helping you would need to apply to the Court if someone needs permission from the Court to make decisions about your health, welfare, financial affairs or property. 

The Court can make decisions about:

  • Whether an action to be taken on your behalf is appropriate, when you lack capacity to take it for yourself – the Court can decide whether they think you have capacity to make a particular decision or whether something is in your best interests.
  • Disagreements that cannot be settled in any other way, such as by using an independent mental capacity advocate.
  • Situations where a series of decisions rather than a single decision will need to be made for you.
  • Challenges to an authorisation for the deprivation of liberty safeguards or disputes about their use.               
  • Removing an attorney under your lasting power of attorney or removing a deputy.
  • Your healthcare or personal care, where there is no attorney or deputy to make it.
  • Whether an advance decision or Lasting Power of Attorney is valid, or about their meaning if there is a disagreement.
  • Whether a deprivation of liberty safeguards authorisation has been granted lawfully, or about settling a dispute about the use of the safeguards against you.

The Court must always act in your best interests when it makes these decisions for you.

How much does it cost to apply?

You normally have to pay a fee to apply to the Court. In certain circumstances, depending on how much money you have, you can be excused from paying fees and get a fee exemption.

Legal aid

Legal aid may be available for you to pay for a solicitor to act for you in the Court of Protection.

  • If you are challenging a decision about deprivation of liberty, you have the right to get legal aid without having a means test.
  • Otherwise, whether or not you can get legal aid depends on how much money you have coming in and what property you own. A solicitor specialising in Court of Protection work will be able to advise you on whether legal aid will be available in your particular case.

Who can apply to the Court of Protection?

Anyone can apply:

  • You can apply if you have a question that the Court has the authority to decide. You don’t need permission to do this if you are the person the Court is going to make a decision about and you are over 18.
  • Your legal guardian would apply if you are under 18, and they could apply without permission.
  • Your attorney, deputy or anyone named in a court order relating to the matter could also apply, without needing permission.
  • Family members, healthcare trusts, Clinical Commissioning Groups and local authorities can also apply, but they would need permission from the Court.

If someone brings a legal action to the Court of Protection on your behalf because you lack capacity, you should still be included in this. You will need to get a solicitor, but if you do not have the capacity for this, the court will consider how you should be involved and may appoint a litigation friend or representative for you.

What if I disagree with the Court’s decision?

You may be able to challenge a decision from the Court of Protection by applying to the Court of Appeal – however, you may need permission for this.

If you want to challenge a decision, you should get legal advice from a solicitor specialising in Court of Protection matters to help you work out:

  • whether you are likely to get legal aid for your challenge
  • how likely you are to win your case.                         

You should not go ahead with a legal challenge if your solicitor does not think you are very likely to win, because it can be stressful and expensive. You should ask for advice about legal aid, as you may be entitled to it if your challenge is about you being deprived of your liberty.

 


This information was published in November 2017. We will revise it in 2019.


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