1. Introduction

The Court of Protection is the specialist court for all issues relating to people who lack capacity to make specific decisions. The court can make decisions and appoint deputies to make decisions about someone’s property and financial affairs or about their personal welfare and healthcare.

2. When Might an Application to the Court be Necessary?

A court decision will usually be needed if someone cannot make decisions about financial matters and they have significant savings or property. It will not usually be needed if the person has a low level of savings and is in receipt of state benefits only, as these can be managed by an appointee appointed by the Department for Work and Pensions.

Most decisions about personal welfare can be made by following the five principles of the Mental Capacity Act 2005; see also Best Interest Decision Making Procedure.

However, it may be necessary to apply to the court where:

  • The decision concerns serious medical treatment to which the person cannot consent;
  • The decision is difficult or complex and it is hard to ascertain where the person’s Best Interest lies;
  • There is a dispute or disagreement with a decision made under the Best Interest Decision Making procedure which cannot be resolved;
  • The person needs ongoing help with decisions relating to personal health and welfare.

A court decision will not usually be required if, when the person had capacity, s/he made an Enduring Power of Attorney or Lasting Power of Attorney and empowered someone to act on their behalf. The scope of the power must be checked however, as it can confer the ability to make either welfare or financial decisions or both and may have limits placed on the Attorney’s decision making ability. If it is felt that an attorney is acting contrary to the Best Interest of the person who lacks capacity, an application can be made to the Court to end the power of Attorney.

3. Who Should Make the Application?

The process of applying to the court is very carefully prescribed and can be complex. To avoid unacceptable delays in decision making and unnecessary charges, the decision to apply should be agreed by the Team Manager or Assistant Head of Service and then made by Legal Section, acting on the specific instruction of the social worker within ten working days, or one working day for an urgent application.

4. When Should an Urgent Application be Made?

The Court of Protection will usually make a ruling within 16 weeks of the application being made but there are times when a ruling is needed more urgently. These include but are not limited to:

  • Applications about urgent medical treatment;
  • Applications to prevent someone being removed from the place they live;
  • Applications to execute an important financial transaction where the person’s life expectancy is short.

In any other situation, if there is a clear risk that someone may suffer serious loss or harm an urgent application should be made.