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Mental Capacity Act 2005

Explains 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.

What's 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 you. This could be decisions about your health, welfare, financial affairs or property. 

The Court can make decisions about:

  • Whether an action that someone is taking 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. For example, by using an independent mental capacity advocate (IMCA).
  • Situations where a series of decisions, rather than a single decision, need to be made for you.
  • Removing an attorney under your lasting power of attorney.
  • Removing a deputy.
  • Your healthcare or personal care, where there's no attorney or deputy to make decisions about this.
  • Whether an advance decision or lasting power of attorney is valid. Or about their meaning, if there's a disagreement.
  • Whether a deprivation of liberty safeguards (DoLS) authorisation has been granted lawfully. Or settling a dispute about the use of the safeguards against you. This may include authorising a deprivation of liberty where DoLs haven’t been used.

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 some circumstances, you can be excused from paying fees and get a fee exemption. This will depend on how much money you have.

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’re challenging a decision about deprivation of liberty safeguards, you have the right to get legal aid without having a means test.
  • Otherwise, whether or not you can get legal aid depends on your income and what property you own. A solicitor specialising in Court of Protection work will be able to advise you.

Who can apply to the Court of Protection?

Anyone can apply to the Court of Protection, including:

  • You. 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're the person the Court is making a decision about, and you're aged 18 or older.
  • Your legal guardian. They would apply if you’re aged under 18. They can apply without permission.
  • Your attorney, deputy or anyone named in a court order. They wouldn’t need permission.
  • Family members, healthcare trusts, Clinical Commissioning Groups and local authorities. 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. The Court must consider the best way to involve you in the court case.

This might include giving you the opportunity to tell the court what you want. For example, you could speak in court yourself or tell someone else what you want the court to know. You could also appoint a representative or litigation friend to act 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. But 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. They can help you work out:

  • Whether you're likely to get legal aid for your challenge
  • How likely you are to win your case                         

Going to court can be a stressful and expensive experience. It may help to ask for advice about legal aid for your challenge. You may be entitled to this if your challenge is about you being deprived of your liberty.

This information was published in April 2023. We'll revise it in 2026.

References are available on request. If you would like to reproduce any of this information, see our page on permissions and licensing.

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