The Court of Protection’s Jurisdiction When A Protected Party Has Been Assessed To Have Capacity

The majority of cases dealt with by the Court of Protection relate to a protected party whom has already been held to lack capacity. There are however cases where a protected party’s capacity or lack thereof is for the Court’s consideration. If it is held that a protected party lacks capacity then the Court, under its jurisdiction, is able to make decisions on behalf of the protected party, which are to be in their best interests. In the instance where a protected party is found to hold capacity, the Court’s jurisdiction ends and it is unable to make decisions on behalf of them.

It is important to note that the capacity required is dependent on the decision to be made by the protected party or on their behalf and it is possible for the protected party to be assessed as having capacity in relation to some matters, whilst being deemed to lack capacity in respect of other decisions. This is very common where a protected party is assessed to lack capacity to manage their property and financial affairs but retains capacity in respect of their health and welfare.

Mental Capacity Act 2005

Under the Mental Capacity Act 2005 (MCA), a protected party is deemed to lack capacity when they are unable to make a decision in accordance with the below:

• Understand information relevant to the decision;
• To retain that information;
• To use or weigh that information as part of the process of making the decision; or
• To communicate his/her decision.

A protected party should be supported as far as possible to ensure they follow the above requirements to make their own decisions, and it is assumed that a protected party will have capacity, unless it has been proved otherwise.

A protected party must also not be considered to lack capacity merely because they make unwise decisions and the Court of Protection has no jurisdiction to prevent unwise decisions when a protected party has been held to have capacity.

A Local Authority v RS (Capacity) [2020] EWCOP 29

The recent case of A Local Authority v RS demonstrates how the Court’s jurisdiction ceases when a protected party has been assessed to retain capacity and allows them to make risky decisions.

In this case, the protected party had a diagnosis of autism and a mild learning disability. The protected party was known to social services and lived in place of supported residence, as funded by the Local Authority. The protected party’s particular interests caused him to engage in risky behaviour where he would regularly meet people that he had met online with no support. The Local Authority sought a declaration to be made by the Court of Protection to prevent this behaviour as this was felt to be in the best interests of the protected party.

The Court considered the protected party’s capacity to decide where he lived, decide on the care he received, decisions to have contact with others and his capacity to use the internet and social media. The Court held the protected party to have capacity for all considerations and therefore allowed the protected party to continue with his apparent risky behaviour. The Court was unable to make any decisions in the protected party’s best interests at the point he was held to have capacity as the Court’s jurisdiction also ended there.