Our Court of Protection team are often contacted by advocates, family and/or carers. They may have received court documents from a Local Authority or Health Board/NHS trust and are not sure what they need to do. They might also worry about a friend or family member and are looking for some advice. Since its inception in 2019, our specialist Court of Protection team has grown exponentially across England and Wales. We know that this area of law is very complex (and is not very well known!) so have created a quick guide below of what we do and how we can help. Here’s our Court of Protection FAQ:
What is the Court of Protection?
The Court of Protection is a court in England & Wales that can make decisions on behalf of people who lack capacity to make their own decisions. People can lack capacity for many different reasons, for example due to a brain injury, autism, a learning disability or dementia. The person who lacks capacity, and who the court proceedings are about, is known as ‘P’.
Lots of different decisions can be made by the Court of Protection on behalf of the person who lacks capacity in relation to a lot of different issues. These are normally split into two different categories:
- Welfare Issues – this may include decisions surrounding where someone should live, what care they should receive, what medical treatment should be given to them or who they should have contact with.
- Property and Financial Affairs – if P lacked capacity and needed someone to help them manage their money, the Court of Protection might be asked to consider whether someone is appropriate to hold a Lasting Power of Attorney for P or whether a deputy should be appointed.
In many cases, where someone lacks capacity to make a decision and everyone in their life is able to agree what should happen, the court isn’t needed. In such cases, these decisions can be made in agreement in someone’s best interests. However, if there is disagreement about what should happen, an application should be made to the Court of Protection. Here, a judge will decide what should happen. These applications can be made by the Local Authority or Health Board. They can also be made by family members or by advocates on behalf of P.
In some cases, there doesn’t need to be a dispute for an application to have to be made to the court. An example of this would be if you wanted to apply for deputyship for someone.
The main piece of legislation (or law) that the Court of Protection is applying is the Mental Capacity Act 2005.
What is Court of Protection work?
As you can see, the Court of Protection covers a vast number of things. It is therefore very difficult to say in a short number of words what exactly Court of Protection work is!
However, some key phrases that you might hear or see which should ring alarm bells for the Court of Protection are:
- Capacity
- The Mental Capacity Act 2005
- Deprivation of Liberty Safeguards (or DoLS for short)
- Lasting Powers of Attorney
- Deputyship
We will be doing more articles in due course about what all of these things mean so stay tuned! But if you see references to these sorts of things, it is more than likely a Court of Protection solicitor that you need to help you.
What does a Court of Protection Solicitor do?
Most often, we are instructed by advocates on behalf of P to represent their wishes and views in the court. We are also experienced at representing family members in court proceedings who may be worried about a loved one.
No day will look the same for a Court of Protection solicitor! On some days, we will be drafting statements and filling out forms. On other days, we will be having meetings with Local Authorities or NHS bodies or appearing before judges in court. Without a doubt, one of the best parts of our job is getting out of the office to go and meet with P – this might be in a care home, in hospital, supported living or in their own home.
How long do Court of Protection cases take?
It’s almost impossible to put a time frame on how long a Court of Protection case may take. This is particularly true as there can be huge differences between Health & Welfare cases and Property & Affairs cases. Some cases can be dealt with fairly quick in a number of months. However, really complex or contested cases can go on for over a year.
How Reeds Solicitors Court of Protection Solicitors Can Help
We have a team of six solicitors, a trainee solicitor and a paralegal with a wealth of experience in Court of Protection work. Our areas of expertise cover both health & welfare and property & affairs. Two of the solicitors in our team are Law Society Mental Capacity (Welfare) Accredited Legal Representatives. This is an accreditation that recognises expertise in Court of Protection work.
We are also very lucky to have three solicitors who are Law Society Mental Health Accredited. This recognises expertise in representing clients who are detained under the Mental Health Act 1983. This can sometimes colloquially be referred to as being “sectioned”. There is often a lot of overlap between Court of Protection and Mental Health work. So, this additional knowledge is incredibly valuable in fully advising all our clients.
If you receive court papers from a public body or you are worried about a family member and are concerned, they might not have capacity to make their own decisions, we can advise you. Court of Protection proceedings, by their very nature, are emotional and personal and it is our job to support you.
This area of work is very complex. The Court of Protection can sometimes seem like it has it’s own language; with lots of jargon and past case law being referred to. There are many special forms that have to be used and must be completed carefully and competently.
Our Court of Protection team can guide you through the legal process. We also have close relationships with chambers across England & Wales and can instruct specialist barristers to assist when needed. Contact us now through our contact page here, or through our Court of Protection service page.
