Protecting vulnerable loved ones
At Nelsons, we understand that disputes involving the Court of Protection can be complex and emotionally challenging. Our experienced team of specialists in Derby, Leicester and Nottingham is here to provide expert guidance and support throughout the process.
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What is the Court of Protection?
The Court of Protection is a specialist Court which exists to safeguard people who have lost the mental capacity to make decisions for themselves concerning either their health and well-being or their financial affairs. It operates under its own rules, with its own forms.
If an individual has not appointed someone to act on their behalf via a Power of Attorney, then any family member, friend or professional looking to manage that person’s affairs needs to apply to the Court of Protection for a deputyship order.
If the health or welfare of a person who lacks capacity is called into question and that person might be at risk, the local authority is forced to step in and can start proceedings in the Court of Protection to try and protect them from harm. Local Authorities have a statutory responsibility to act in that person’s best interests and to ensure they are receiving care to the extent that this was not being provided before, to make sure they are living in appropriate conditions and protected from any potentially harmful third parties. In these cases, the Local Authority is authorised by the Court of Protection to take the necessary steps to ensure that they are looked after appropriately provided they can demonstrate that the person in question is at risk.
Common Court of Protection disputes
Disputes can arise in various situations, including:
- Deputyship applications – Disagreements over who should be appointed as a deputy to manage someone’s affairs.
- Best interests decisions – Conflicts about what course of action is in the best interests of the person lacking capacity.
- Contested Lasting Power of Attorney (LPA) – Challenges to the validity or use of an LPA.
- Statutory Will applications – Disputes over applying for a Will on behalf of someone who lacks capacity.
- Deprivation of Liberty Safeguards (DoLS) – Disagreements about restrictions placed on an individual’s freedom.
Meet the team
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Kevin ModiriPartner & Solicitor
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Stuart ParrisSenior Associate & Solicitor
How Nelsons can help with Court of Protection disputes
Court of Protection disputes operate according to The Court of Protection Rules 2017 and within a unique framework, which makes this a very niche area of law, but at Nelsons it’s an area of law in which we specialise.
In Court of Protection disputes, it’s important to realise that the Court operates in a different way from a Civil Court. The approach is usually more conciliatory, and there is sometimes no “winner” and no “loser”, as what matters more than anything else is the best interests of the protected party.
Our team has a great deal of experience in handling Court of Protection cases. Having this experience and understanding of the differences in how the Court of Protection operates in comparison to the other Courts is essential to helping our clients get the best outcome for their loved ones, and to protect themselves if they are ever embroiled in such disputes.
Why choose Nelsons?
- Specialist knowledge – Our team has extensive experience in Court of Protection matters.
- Client-focused approach – We tailor our services to meet your specific needs and circumstances.
- Recognised expertise – We are recommended by the independently researched publication, The Legal 500, for our work in this area.
- Clear communication – We keep you informed at every stage of the process.
Testimonials…
If you have any concerns that the best interests of a vulnerable family member or friend are not being served by their attorney, deputy or by the local authority, then please get in touch with our team of Court of Protection disputes solicitors in Derby, Leicester and Nottingham on 0800 024 1976 or via our online form.
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Court of Protection Disputes FAQS
Below, we have answered some frequently asked questions concerning court of protection disputes
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When does the Court of Protection have jurisdiction?
The Court of Protection only has jurisdiction when a protected party has been shown to lack the capacity to make certain decisions for themselves, relating to either:
- Their personal finances; or
- Their health and welfare.
The Court has the power to make decisions on behalf of the protected party, or to validate a decision that others want to take on the protected party’s behalf. Those others typically include the protected party’s attorney(s) or deputy/ies or a local authority seeking to take decisions to protect the protected party’s welfare. The Court will base any decision it makes on what is considered – in all the circumstances – to be in the protected party’s best interests.
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What if I believe a protected party has capacity?
It is quite common for disputes to arise over a protected party’s capacity, and the extent to which they lack capacity. This is because capacity is “decision-specific” and it can fluctuate in some cases. When there is a dispute, a jointly appointed expert (usually a psychiatrist) will be instructed to meet with the protected party and assess their capacity before reporting to the Court.
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Who is involved in a Court of Protection dispute?
If the dispute relates to a protected party’s finances, then the deputy/deputies or attorney(s) will always be a party to the proceedings. The protected party themselves will often be involved as a party (who will be represented by a litigation friend – usually the Official Solicitor and a nominated firm), and other parties may include the Office of the Public Guardian, the protected party’s spouse, and any close relative or close friend with an interest in the outcome.
In health and welfare disputes, the parties involved in a Court of Protection dispute are usually the protected party themselves (via a litigation friend), those caring for the protected party (their spouse, parents, children, NHS Trust or local authority), and in some cases, close relatives.
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A Court of Protection case has started but I am not a party. Can I become one?
If a Court of Protection case has begun, and you have not been included as a party, you can apply to become one. The Court may add someone as a party if it considers it “desirable to do so” in order to deal with the proceedings. You must demonstrate when applying that you have an interest in the proceedings.
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Will I have to go to Court?
In almost every Court of Protection case there will be a Court hearing. However, that is not to say that you will have to give evidence or be questioned in Court – this only normally happens if there is a contested hearing.
Most hearings in the Court of Protection are directions hearings and although these hearings can involve disagreement they are generally less confrontational. The Judge will hear from each of the parties in turn before making a decision.
You also have the opportunity to file and serve a position statement ahead of the hearing.
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How much does it cost to be represented in the Court of Protection?
It is impossible to say with certainty as every case is different, and when a Court of Protection case has just begun, it can quickly evolve if any of the parties introduces new issues.
It is also not uncommon for there to be several different hearings before a case reaches its conclusion.
We do provide clients with regular estimates, and these are updated frequently.
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Can I recover my costs in a Court of Protection dispute?
The Court of Protection Rules 2017 provide that if you are involved in a dispute over the finances of a protected party, then normally the Court will allow you to recover your legal costs from the protected party’s resources.
However, this is subject to assessment, which is a formal process by which the Senior Court Costs Office reviews all your legal costs and decides whether they are all fair and recoverable. Typically, the rate of recovery is 60% to 75%.
In cases concerning the protected party’s health and welfare, all parties are usually expected to bear their own legal costs.
The Court does have a discretion however and any party who has been seen to have created unnecessary costs can be denied recovery. Alternatively, if another party has acted unreasonably they may be ordered to pay the costs of the others.
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Do you offer legal aid for Court of Protection disputes?
At Nelsons, we act on a private paying basis only in the Court of Protection and our standard hourly rates apply. In certain limited cases, we can act on a deferred fee basis (i.e. we will not require payment until the end of the proceedings) or under a conditional fee arrangement (discounted base fees, with an uplift payable if we succeed) or a no-win, no-fee agreement (costs and a success fee payable if the outcome is wholly or partly in your favour).
However, a case must be fully assessed before we can consider acting on an alternate funding arrangement.
Get in touch
Speak to us now on 0800 024 1976Email Us
