Court of Protection problems

Key terms you’ll hear in regards to the Court of Protection: If someone makes a power of attorney they are the “donor”, the individuals they appoint to make decisions on their behalf are the “attorneys”. If a person “donor” has already lost capacity so cannot choose their own “attorney” one is appointed for them by the Courts. These individuals are “deputies” and have similar powers as “attorneys”

A person's mental capacity

Disputes as to whether a vulnerable person has lost capacity

The starting point is that a person must be assumed to have capacity unless it is established that they lack capacity.  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.”  A person is deemed unable to make a decision if he cannot understand the information relevant to the decision; he cannot retain that information; he cannot weigh information as part of the process of making the decision; and he is unable to communicate even with support.

There is no specific requirement for a professional (medical or otherwise) to carry out an assessment of someone’s capacity.  Someone responsible for providing care to and who is involved in the vulnerable person’s life can carry out the assessment as and when a specific decision needs to be made. 

However, you may disagree with the findings of this person.  In such cases, we suggest you seek specialist advice and consider obtaining a professional opinion before getting involved in court proceedings

Objections to an appointment

Objections to the appointment of someone to manage a vulnerable person’s affairs

It is advisable to put a Power of Attorney in place while someone still has the capacity to do so. A Lasting Power of Attorney needs to be registered before it can be used and an Enduring Power of Attorney needs to be registered once the donor is becoming or has become incapable of managing their finances. 

If you have recently received notice that the attorney of a loved one is in the process of registering a Power of Attorney and you are of the view that the attorney is not acting in that person’s best interests or your loved one did not have the capacity to make the Power of Attorney in the first place, you may wish to object to the registration.

Alternatively, if an application is being made by someone to be appointed as your loved one’s deputy and you are of the view that the proposed deputy is not a suitable candidate, you may wish to object to the application. 

We suggest you seek specialist legal advice should you wish to object to the registration of a Power of Attorney or a Deputyship application as the process can be complex and costly.

Cancelling a power of attorney

There have been increasing cases where attorneys have failed to carry out their duties properly and have subjected the vulnerable person to financial abuse.  In cases where an attorney has not acted in the vulnerable person’s best interests and there is evidence to support these allegations, the Court of Protection has revoked and cancelled the power of attorney. 

If you have concerns that a relative or friend is being taken advantage of by their attorney, our suggestion is to gather evidence and seek specialist advice before making an application to the Court of Protection.

Challenging gifts

Attorneys and deputies can make certain gifts on behalf of the vulnerable person.  However, approval of the Court of Protection is required when the gift involved is substantial and not made on customary occasions. The Court of Protection has warned attorneys that ignorance of the law is no excuse. 

If you have concerns that a relative or friend is being denied of their funds as a result of their attorney or deputy making gifts, you may wish to consider making an application asking the attorney to reimburse the vulnerable person and rectify the situation and/or for the attorney to be removed.

Seeking the Court’s approval

Seeking the Court’s approval of certain transactions (including retrospective approval)

Attorneys and deputies are expected to follow the guidance of the Code of Practice when making decisions on behalf of a vulnerable person.  There are restrictions on what they can do when managing a vulnerable person’s finances and they have a fiduciary duty not to take advantage of the situation and benefit from it. There are occasions when an attorney or a deputy may have taken steps without realising that their action is prohibited and they should have sought the Court of Protection’s approval first.  Examples of such actions are paying themselves or family members for care provided to the vulnerable person, making a loan to a family member or investing the vulnerable person’s funds, etc.

If you have been made aware that, as an attorney or deputy, you should have sought the Court of Protection’s approval before making payments, it may still be possible to seek retrospective approval of the Court of Protection as long as you can show that you acted in the vulnerable person’s best interests and they have not suffered as a result of your action.  

Statutory wills

A person who has lost testamentary capacity (that is, the capacity to make a will), should not make a will as it may be challenged.  However, there are circumstances in which a will may be of benefit to the person who has lost capacity.  A will proposed and made on behalf of a vulnerable person has to be approved by the Court of Protection.  A Court-approved will is known as a statutory will.

Making a new will (and therefore revoking the previous will) or making a will for the first time may not be well received by existing and/or potential beneficiaries and they may wish to object to the application.  If you wish to object to a proposed statutory will, we suggest you seek legal advice as the process can be complex and costly.

Challenging personal welfare decisions

Challenging personal welfare decisions such as where the vulnerable person should reside

A personal welfare decision which is commonly disputed is the treatment to be given, location of where the vulnerable person shall reside, for example the location of a care home. Family members may have preferences on where the vulnerable person should live but ultimately, the Court of Protection will look at which care home will be in the vulnerable person’s best interests. The Court will take into account all relevant factors such as the vulnerable person’s care needs and whether the proposed care home can facilitate these, the vulnerable person’s wishes, the status quo, who would visit the vulnerable person and costs of such care. These types of cases are becoming more common and we have a specialist team who are familiar with the process.

Reconsideration of a Court order

The Court of Protection rules provides that, where the court makes an order without a hearing, anyone who is affected by it may apply within 21 days for the order to be reconsidered. This is not an appeal of the decision, but an opportunity for any party to ask for reconsideration in light of how the Court of Protection operates. The Court of Protection is given the power to reach decisions in a quick, convenient and cost effective manner. It can be argued that such speedy decisions can lead to dissatisfaction and that is why the reconsideration of orders is becoming more frequent.

The procedure involves filing a detailed witness statement together with an application form and potentially other Court of Protection forms depending on what the original order was. Due to the complexities of the court forms and tight deadlines, we are ready to guide you through the process. 

Our team

Our solicitors are experienced in matters relating to contentious court of protection and power of attorney issues. We are well placed to protect vulnerable members of society, giving you peace of mind that your loved one's financial and legal affairs will be protected.

If you have any queries regarding the above please do not hesitate to contact our Danielle Pawson.