Protecting vulnerable loved ones
The Court of Protection 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.
If that 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
Challenging 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.
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.