Court of Protection

When a person has been assessed as lacking capacity, they are generally unable to appoint an attorney to act on their behalf under a Lasting Power of Attorney and therefore the Court of Protection will need to be involved. There are two areas of decision making that the Court of Protection deals with: the first is the management of people’s property and affairs; the second is making decisions in relation to personal health and welfare.

Mental capacity can be lost in several ways, and is often lacking because of a neurological diagnosis, including Alzheimer’s disease or dementia. It may be affected by a traumatic event, like a road traffic accident, an accident at work or as the result of an injury at birth. We also have clients whose capacity has been altered due to prolonged substance abuse and this may mean that capacity can fluctuate over time.

Some people’s capacity is unlikely to change over time and they will lack capacity to make some decisions from an early age, for example if they have a learning disability. However, even where there is no fluctuation over time, the person may be able to make some decisions but not others. When an assessment of a person’s capacity takes place, it must address whether the person has the capacity to make the specific decision at hand. This is because the information relevant to each decision is different. A lack of capacity can be permanent, temporary, or it can “come and go”. Therefore, the test of capacity is not only decision specific but time specific too. If at the point a decision needs to be made a person has been formally assessed as lacking the capacity to make that particular decision, an application will need to be made to the Court of Protection to ensure that it is made legally, in the person’s best interests, and after all of the circumstances and evidence have been considered.

The Court of Protection will become involved in “decision specific” applications, including who the vulnerable person may have contact with or where they might live, or they can be responsible for determining applications surrounding the appointment of a deputy. A deputy can be given a wide authority to manage all the financial or health and welfare affairs of the vulnerable person or the Court can restrict a deputy’s authority to only being able to make decisions about specific matters.

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