Protecting vulnerable loved ones
The Court of Protection is a specialist Court which exists to safeguard people who have lost the mental capacity to make decisions for themselves with regards to either their own 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.
Types of Court of Protection disputes
Challenges to a Power of Attorney or deputyship order
Any attorney or deputy has a responsibility to act in the best interests of the person who lacks capacity. When a deputy fails to comply with this duty, family members, close friends or the Office of the Public Guardian (OPG) can seek remedies from the Court of Protection, including applying to have the Power of Attorney or the deputyship order revoked and to appoint someone else in their place.
This is common in cases involving financial matters if a deputy or attorney is not handling the protected party’s money properly, or has subjected that person to financial abuse.
Validation of gifts and payments
When you are acting as an attorney or deputy, you will have to report back to the OPG regularly. The OPG has a duty to make sure you are acting in the protected party’s interests, and not straying beyond the powers you have. Sometimes gift payments are not covered by the Power of Attorney or the deputyship order and it is necessary to go to Court to get them validated, or to make changes to the instrument so that in future this is not an issue.
Some of our clients run into difficulty if the OPG objects to the way they have done things and we can advise and assist you in protecting yourself in such situations.
Disputes involving a local authority
Where health and welfare is concerned, Court of Protection disputes are more often than not between the family of the person concerned and the local authority. If the local authority has stepped in to protect someone, they are required to seek Court permission for enforced deprivation of liberty. To succeed, they must establish that the deprivation is proportionate to the risk the protected party faces and in their best interests.
Invariably, these disputes centre on what is in the best interests of the person concerned, although part of that equation does involve the person’s own feelings and the wishes of close family members or friends. The family of a protected person has the right to be heard in cases such as this and can present alternatives to measures the local authority seeks to employ.
Essentially, if you believe that a local authority is not acting appropriately then you can challenge their actions.
Court of Protections disputes FAQs
Below, we have answered some frequently asked questions which our team receives.
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.
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.
How can capacity assessments take place during the coronavirus pandemic?
It is usually possible for capacity assessments to go ahead face to face provided social distancing is observed.
However, this is not always possible and some care homes have banned all visits from third parties, except for emergency cases. In some circumstances, capacity assessments can be completed via Zoom, Windows Teams or Skype.
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.
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.
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.
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.
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.
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.
How can we 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 which we specialise in.
In Court of Protection disputes, it’s important to realise that the Court operates in a different way to 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.
At Nelsons, we have a great deal of experience of 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 help our clients get the best outcome for their loved ones, and to protect themselves if they are ever embroiled in such disputes.