"What do Court of Protection lawyers do?"

Background

The Court of Protection ("COP") makes decisions on financial or welfare matters for people who lack the mental capacity to make those decisions themselves. 

The structure of the COP

PRESIDENT - the current President is Sir Andrew McFarlane and his functions include choosing judges who hear COP cases, making COP rules and making practice directions. 

VICE PRESIDENT 

SENIOR JUDGE - special responsibility for COP's jurisdiction over mental capacity and can make administrative decisions about the COP. 

JUDGE IN CHARGE - non-statutory role to help with operational and judicial matters. 

JUDGES - have authority to exercise court's powers under Mental Capacity Act 2005 (normally 5 full time judges of the COP). 

COP VISITORS - the COP has a panel of experts that act as the eyes and ears of the court. There are two types of visitors: special (medical practitioner) and general (not medical practitioner but have other experience of, or qualification in, mental capacity issues)

  • Visitors will visit persons lacking capacity, deputies, attorneys and associated agencies and third parties such as social services and care home managers as part of general supervision and monitoring or in response to a specific issue. 

Operation of COP

The COP has jurisdiction to make a decision only where a person is unable to make that decision because they lack capacity. 

The COP must operate within the 5 statutory principles set out in section 1 of the Mental Capacity Act 2005:

  • A person must be assumed to have capacity unless it is established that he lacks capacity. 

  • A person is not to be treated as unable to make a decision unless all practical steps to help him are taken without success. 

  • A person is not to be treated as unable to make a decision merely because he makes an unwise decision. 

  • An act done, or decision made, under MCA for, or on behalf of, a person who lacks capacity must be done, or made, in his best interests. 

  • Before the act is done, or decision made, consider whether the purpose for which it is needed can be achieved as effectively in a way that is less restrictive of the person's rights and freedom of action. 

The principles aim to protect people who lack capacity and not to restrict or control their lives. 

The powers of the COP

  • Decide whether someone has the mental capacity to make a decision.

  • Appoint deputies to make ongoing decisions for those that lack mental capacity. 

  • Give people permission to make one-off decisions on behalf of someone lacking mental capacity and handling urgent or emergency applications.

  • Make decisions about lasting power of attorneys etc.

  • Consider applications to make statutory wills or gifts.

  • Make decisions about when someone can be deprived of their liberty under the Mental Capacity Act.   

Who can make an application to the COP?

The following people can make applications to the Court of Protection:​

  • The person lacking capacity. 

  • An attorney - a person appointed as the Power of Attorney for the person lacking capacity 

  • A deputy - a person appointed by the COP to act on behalf of a person lacking capacity. 

  • The Official Solicitor - the Official Solicitor is part of the judicial system of England and Wales. The Official solicitor acts for children or adults who lack capacity to represent themselves in court proceedings. 

  • The Public Guardian 

If the person lacking capacity is not the applicant, the COP will decide whether or not the person lacking capacity should be joined as a party to the application. 

COP Solicitors 

COP solicitors are specialised in helping clients deal with all matters relating to COP. 

A COP solicitor can also be appointed to the role of deputy for clients lacking mental capacity. 

Typical tasks of a COP solicitor can include: 

  • Deputyship applications. 

  • On-going finance administration.

  • Trustee orders. 

  • Statutory will applications. 

  • Enduring and Lasting Powers of Attorney. 

  • Providing Mental Capacity Act and deputyship advice to clients. 

  • Making court applications (including urgent applications). 

  • Completing tax returns.