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The Court of Protection
The Court of protection can make decisions for people who do not have the mental capacity to make them for themselves. This could mean deciding where they should live and/or what care they should receive there and who they spend time with. It may also be a decision concerning whether a person should receive certain healthcare or medical treatments.
If a person (‘P’) is assessed as lacking capacity to make a decision for themselves then the Mental Capacity Act 2005 provides a framework for decisions to be made in their best interests. Decisions will be reached taking in to account P’s wishes and feelings, family members views and those of professionals. If agreement cannot be reached or if the person concerned objects to the decision then an application should be made to the Court of Protection.
What is an Accredited Legal Representative?
Two of our partners here at David Gray Solicitors, Emma Silburn and Claire Hunter, are Accredited Legal Representatives known as ALR’s.
They are solicitors who have been approved by assessment and interview by the Law Society to join the Mental Capacity (Welfare) Panel of specialist experienced solicitors to ensure that a person who lacks capacity to make decisions is able to participate in proceedings about them and ensure that their wishes and feelings are shared directly with the Judge making those decisions on their behalf.
At the outset of a welfare case in the Court of Protection the court will consider whether an ALR can be appointed to represent and put forward the best interests of the person about whom the proceedings are about (‘P’). The court will also consider if a litigation friend who may be a professional, friend or family member can in this role or if the Official Solicitor should be invited to that role instead.
An ALR will meet with P and find out what their wishes and feelings are. They will keep P updated as the case progresses, and obtain and consider all necessary paperwork. They will correspond with other people involved in the case and ensure that P is appropriately represented at attended court hearings. The ALR will ensure that everyone involved knows what P would like to happen. The ALR however, must always act in what they believe to be P’s best interests.
If the court decides that an Accredited Legal Representative is an appropriate mechanism for ensuring P’s participation at the outset of proceedings, the court or the ALR can always ask the court to look at this again if the case becomes more complex, for example if expert evidence is required and it is considered more appropriate for the Official Solicitor to represent the persons interests as a litigation friend. If this were to occur then the ALR would remain involved in the case as P’s point of contact, but would now take their instructions from the Official Solicitor.
Deprivation of Liberty
We regularly represent those who are resident in care homes against their wishes subject to a Deprivation of Liberty (DOLs) through their advocate and the Official Solicitor.
A person who is deprived of their liberty by way of a DOL’s authorisation in their care home is entitled to free legal representation. A person for whom the Court are being asked to make welfare decisions, but whom isn’t in a hospital or care home, (for example where they should live or who they should spend time with) may be entitled to legal aid depending on their financial situation.
Contact Us
We have protected the interests of vulnerable people, in the North East for over 35 years. Our team can help the family of those subject to a deprivation of liberty or Court of Protection Health and Welfare proceedings.
Legal aid is available for those subject to a Deprivation of Liberty and family members may qualify for legal aid depending on their situation.
If you require further information on any aspect of Court of Protection please do not hesitate to contact our specialist Court of Protection Team on 0191 232 9547.
Head of Court of Protection (health and welfare) Emma explains more about how our team can help, she also covers Deprivation of Liberty and accessing Legal Aid:
Our Court of Protection (Finances) team can also assist family members or lay deputies in managing others’ financial affairs. Please see our separate ‘Court of Protection (Finances)’ page for more detail.
Frequently Asked Questions
Who can act as a Deputy?
To become a deputy, you must 18 or over and have the skills to make financial decisions for someone else. You must also not have a criminal record or have been declared bankrupt.
A deputy is usually a close relative or friend of the person needing help (who is known as P) however, a professional, such as a solicitor or accountant may also be appointed if necessary. A deputy can apply to be appointed on their own or two or more people can apply to be appointed to work together.
What is the process to become a Deputy?
You must file an application with the court including supporting information. This includes a capacity assessment of P about whether they have the relevant capacity to manage their own finances. It is also necessary to serve notice on a minimum of 3 people (usually family members) that the application is being made as well as serve notice on P.
The court will then process the application and refer it to a Judge for consideration. Once the application has been considered, the court will either make an order to appoint a deputy or make an interim order for example, to request further information before making a decision.
Can P regain control of their affairs?
If an order is made to appoint a deputy, then the deputy is under a duty to inform the court if P ever becomes capable of managing their finances on their own. The court has the ability to discharge the order but it is likely they would require a new capacity assessment to be completed.
Can a Deputy step down from the role?
If a deputy is no longer able to act, they can apply to court for a change in deputy. If there are concerns about the conduct of the deputy, then anyone can make a referral to the Office of the Public Guardian’s safeguarding team who will then investigate the matter.
It is important to note, that once a deputy is appointed, they are supervised by the Court of Protection and the Office of the Public Guardian and they are required to submit annual reports about P’s finances with documentary evidence. If there are concerns, the court has the power to remove a deputy or change the level of authority they have
