Applications are made to the Court of Protection for lots of different reasons. If you are an advocate, a family member or a carer and you have received court documentation from a Local Authority or a Health Board/NHS Trust and are not sure what to do next, we can help you. We are frequently asked ‘do I need a court of protection solicitor’. Whilst it is possible to act without a solicitor (a litigants in person), if you are not used to the various forms that are used or lengthy witness statements, it can be quite intimidating without one! We look at this question here in detail, and answer a couple of related questions we receive.
Do I need a Court of Protection solicitor?
This is a difficult question to answer and will likely depend on what the issues are in your case. It may seem quite obvious but the more complicated your case is, the more likely you are to want some help and guidance from a specialist.
Some people choose to act as litigants in person in Court of Protection cases. What this means is that they do not have a lawyer acting on their behalf and represent themselves at court. There are lots of great resources online to help if this is the route you choose to go down. We have set out some of these out below:
- There is general guidance from the Law Society on some of the key things that you need to know about the court process.
- There is helpful advice and useful links from the Courts and Tribunals Judiciary.
- There is also a helpful handbook online that has been created by experienced Court of Protection lawyers to try and explain how the Court of Protection works.
We have many cases where we are representing the vulnerable person and their family members choose to represent themselves at court rather than instructing a solicitor. While we cannot give advice to family members in those cases (as this would be a conflict of interest), we will always do all that we can to be helpful. We can talk about the case in general terms and outline what the court process might look like.
Although you can act as a litigant in person if you want to, many people prefer to have a solicitor acting on their behalf. There are a lot of different reasons for this, but the main ones are:
Court of Protection Forms
There are many different specialist forms that must be completed during a Court of Protection case. These can be quite intimidating (and long!) if you are not used to filling them in. Yet a specialist Court of Protection solicitor will come across them every day.
Court of Protection Jargon
Legal jargon! Although solicitors and barristers will always try their best to explain things in a way that everyone would be able to understand, the Court of Protection, and the law in general, can have its own language. A solicitor can explain what all the different phrases and acronyms mean.
Easing the Emotional Burden
Court of Protection proceedings are, by their very nature, emotional and personal, particularly for family members. Solicitors are there to support you through the process and take on some of the burden for you.
How to find a Court of Protection solicitor
If you have found this article, then you have already made a great start! Court of Protection work is quite specialist, so it is important that you find a solicitor with experience in this complex area. The Court of Protection deals with such a wide range of issues that some solicitors will do one area of work (such as health and welfare) but not other areas of work (like property and finances). This is something to bear in mind when you are trying to find the right solicitor for you.
The easiest way to find a solicitor is to look online! The Law Society has a helpful ‘Find a Solicitor’ tool. Here you can fill out what your legal issue is and what area you live in, and it will give you a list of firms who may be able to help. Some things you may want to look out for are:
- The Law Society Mental Capacity (Welfare) Accreditation – this is a quality standard for solicitors who offer advice in health and welfare matters in the Court of Protection and recognises expertise in this area of work.
- Lexcel – this is an accreditation from the Law Society that indicates quality in relation to legal practice management.
At Reeds, we specialise in health and welfare work as well as financial deputyship. We are Lexcel accredited, and two of our solicitors have achieved the Mental Capacity (Welfare) Accreditation.
Is Legal Aid available for Court of Protection?
There is legal aid available for some Court of Protection cases. The criteria are complicated and there are a lot of different exemptions that can apply depending on your age and what benefits you may be in receipt of. But, in broad terms, we have set out some key guidelines to bear in mind below depending on the kind of Court of Protection issue you are dealing with.
Unfortunately, there is not legal aid available for cases relating to property and financial affairs. Thus, if you are looking at lasting powers of attorney or deputyship in relation to finances, you will not be able to access legal aid. It is worth contacting us and we can discuss private paying options with you in more detail.
In relation to health and welfare issues, the rules are a little more complicated. In some cases, there is non-means tested legal aid available which mean that no matter what your finances look like, you are entitled to legal aid. In other types of cases, legal aid will be means tested and the Legal Aid Agency will look at what you earn and what savings you have to decide if you are eligible. Sometimes this can mean that you will have to fund all your legal representation yourself; sometimes this might mean that you must contribute towards it.
This is something that our team discuss with people every day. If you are wondering if you may be eligible, do give us a call and we can go through the full criteria with you in more detail. If you are not eligible for legal aid, we can also discuss with you the other options available.
Reeds Solicitors are a Lexcel accredited and award winning law firm with a specialist Court of Protection team. Our Court of Protection Solicitors specialise in health and welfare work as well as financial deputyship. Please contact us now about your situation, one of our team will be happy to talk you through the options available to you.