Problems in the Court of Protection: Your Questions Answered

Sarah RyanAccount Manager @ Lawhive & Non-Practising Solicitor

Updated on 11th June 2024

The Court of Protection's job is to protect the interests of those who can't make their own decisions. But for many, dealing with the Court and making important decisions about the welfare and financial affairs of a loved one can be fraught with uncertainty and confusion.

If you're grappling with the complexities of the Court of Protection, in this article, we tackle the most common Court of Protection problems and challenges head-on, to give you a deeper understanding of the court's procedures and how to address common problems in the Court of Protection.

What is the Court of Protection?

The Court of Protection steps in when someone can't make decisions because they lack mental capacity. This might be due to conditions like dementia, brain injury, or severe mental illness.

The court's job is to protect these individuals and make sure their best interests are served in matters involving their welfare and finances.

Key functions of the Court of Protection

The Court of Protection addresses issues concerning individuals who lack the mental capacity to make decisions for themselves. Its key functions include:

1. Making important decisions about a person's healthcare, where they should live, and how their money should be managed.

2. Appointing deputies to manage the affairs of someone who needs help.

3. Monitoring decisions made by deputies.

4. Resolving disagreements about what is best for the person who lacks capacity.

When might you need the Court of Protection?

You might need the Court of Protection if a loved one can't make their own decisions and there's no existing legal arrangement (like a power of attorney).

In these circumstances, the Court can help manage their affairs and decide on the best course of action.

Common problems in the Court of Protection

Complex application process

Applications to the Court of Protection require detailed forms and extensive supporting evidence - both of which can be overwhelming and time-consuming if you’re already dealing with the emotional strain of a loved one’s incapacity.

What's more, the forms and legal terminology used can be confusing. Misunderstanding or incorrectly completing these forms can delay the process or lead to the rejection of an application. Due to this complexity, many people need the help of a will, trust, and probate solicitor to advise and manage the process.

Disputes between family members

Family members sometimes have different views on what's best for a person lacking capacity. When this happens, disagreements can arise regarding their care, living arrangements, or financial management.

Not only do these conflicts create significant emotional stress for families, but they can also complicate the decision-making process, leading to prolonged court involvement.

When these problems happen, the Court of Protection often has to step in to resolve these disputes, making decisions that aim to serve the best interests of the person lacking capacity, which might not always align with the wishes of all family members.

Managing financial affairs

Managing someone’s finances can be complex and daunting, especially if they have significant assets, investments, or debts.

Court of Protection deputies may lack the necessary financial expertise, leading to potential mismanagement or missed opportunities for effective financial planning.

Decisions about personal welfare

Deciding what is in the best interests of a person lacking capacity can be difficult, particularly for sensitive issues.

Deputies and the court must balance respecting the individual’s rights and preferences with protecting them from potential harm. This can involve hard decisions about restricting certain freedoms to ensure their safety.

What's more, healthcare professionals, family members, and the individual themselves (if they can communicate their wishes) may have different opinions on what the best care or living situation looks like, leading to conflicts.

Appointment and supervision of deputies

The court supervises deputies to ensure they are fulfilling their duties correctly. This includes regular reporting and, in some cases, formal reviews.

Compliance with these requirements can be demanding and stressful for deputies.

Urgent or emergency decisions

In cases where urgent decisions are needed, such as emergency medical treatment or immediate changes to living arrangements, understanding the court process quickly can be challenging.

What's more, making quick decisions under pressure adds another layer of stress for those involved, particularly when the person’s health or safety is at immediate risk.

Costs and financial burden

Engaging with the Court of Protection can be expensive, including court fees, legal fees, and expenses related to managing the person’s affairs.

Ongoing costs like deputyship fees, professional advisors, and care expenses, can accumulate over time, placing a financial burden on the person’s estate or family.

While some may qualify for legal aid, many do not, making it important to consider the financial implications and seek cost-effective legal support where possible.

Lengthy and complex processes

Court of Protection cases can be lengthy, sometimes taking months or even years to resolve fully, especially if there are disputes or complex issues to address.

Delays in proceedings can also cause uncertainty and stress, affecting the well-being of the person lacking capacity and their family.

How do I know if someone lacks the mental capacity to make decisions?

Under the Mental Capacity Act 2005, a person lacks capacity if a person is considered to lack mental capacity if, due to an impairment or disturbance in the functioning of their mind or brain, they can't:

1. Understand relevant information to a decision, including the nature of a decision and why it needs to be made.

2. Retain information long enough to use it to make a decision.

3. Weigh up information as part of the decision-making process.

4. Communicate their decisions verbally, using sign language, or through other means.

If there is doubt about someone’s capacity, seek an assessment from healthcare professionals, such as a GP, psychologist, or psychiatrist.

They can provide a detailed evaluation and professional opinion on the person’s mental capacity using standardised assessment tools or frameworks.

What steps should I take if I disagree with the findings regarding someone’s mental capacity?

If you disagree with the outcome of an assessment of someone's mental capacity, you can typically request a formal review or reassessment of the decision.

Alternatively, you may arrange to get a second opinion from another qualified healthcare professional.

The Court of Protection has the authority to make a legal determination about someone's capacity. However, applying to the Court for this type of matter may involve a court hearing before making a decision.

It's important in any action you take to focus on the best interests of the person whose capacity is being assessed. You should make sure their rights, dignity, and well-being are prioritisied in any discussions or discussions and, if possible, involve them in the process.

Can I object to the appointment of someone to manage a vulnerable person’s affairs? 

If you have concerns about the appointment of a deputy or attorney to manage the affairs of a vulnerable person, it is possible to object to their appointment.

You may do this if you:

• Believe that the person being appointed is not suitable to manage the vulnerable person’s affairs.

• Have evidence or reasonable suspicion that the appointed person might abuse their power, neglect the vulnerable person’s needs, or not act in their best interests.

• Feel there is a more suitable candidate better positioned to act in the best interests of the vulnerable person.

If the appointment was made by the Court of Protection, you can raise your objections with them.

Or, If the appointment involves a Lasting Power of Attorney or an Enduring Power of Attorney, you can report your concerns to the Office of the Public Guardian.

What should I do if I suspect someone is not acting in the best interests of a vulnerable person?

If you believe a vulnerable person is in immediate danger or at risk of significant harm, you should contact emergency services or involve social services for urgent intervention.

If you suspect someone responsible for managing a person's affairs is not acting in their best interests, you should report your concerns to the Office of the Public Guardian. They can take steps to investigate and take action against a deputy or attorney.

You may also ask the court to remove the current deputy or attorney if yu have evidence that they are not acting in the best interests of a vulnerable person. The court can appoint a new deputy or attorney better suited to the role and may also impose interim measures to protect the vulnerable person while the investigation is ongoing.

How can I cancel a power of attorney if I believe it is being misused? 

Each type of power of attorney has different rules and procedures for cancellation.

Ordinary power of attorney

The donor can cancel an OPA at any time by writing a letter of revocation to the attorney. The letter should clearly state that the PoA is revoked and be signed and dated by the donor.

Lasting power of attorney

If the donor has the mental capacity, they can cancel an LPA by completing a ‘Deed of Revocation’ form. This form needs to be signed and dated by the donor and should state that the LPA is revoked. Send the completed form to the Office of the Public Guardian (OPG) to formally cancel the LPA.

Enduring power of attorney

Although no longer available for new applications since October 2007, EPAs made before this date are still valid and cover financial matters.

Similar to the lasting power of attorney, an enduring power of attorney can be revoked by the donor using a Deed of Revocation, provided they still have mental capacity. The revocation should be sent to the OPG.

If the donor lacks mental capacity or if you're facing resistance from the attorney, seek legal advice from a solicitor who specialises in mental capacity issues.

If misuse of the PoA is severe, you may need to apply to the Court of Protection for a formal order to cancel the PoA and possibly appoint a new deputy to manage the donor’s affairs.

Can I challenge gifts made by attorneys or deputies on behalf of the vulnerable person? 

If you believe that gifts made by an attorney or deputy are inappropriate or not in the best interests of the vulnerable person, you can challenge these actions.

Attorneys or deputies can make small, reasonable gifts on occasions like birthdays, weddings, or religious celebrations, provided they are in proportion to the size of the estate and do not adversely affect the person’s financial situation.

Larger or more significant gifts, like transferring property or giving away large sums of money, usually require the approval of the Court of Protection. Unauthorised significant gifts may be considered a breach of duty.

If you believe gifts are inappropriate, you should report your concerns to the Office of the Public Guardian including all evidence supporting your claim that the gifts were not in the best interests of the vulnerable person.

The Court of Protection can also investigate the actions of the attorney or deputy and may order the return of gifts if they are found to be inappropriate.

Can I object to the creation of a statutory will?

A statutory will is drafted and executed by the Court of Protection for a person who cannot make or change their own will due to a lack of mental capacity. It is intended to represent what the person would have wanted, based on their known wishes, feelings, values, and overall circumstances.

They are usually needed when there is no existing will, or the existing will is outdated or inappropriate due to significant changes in the person's circumstances.

If you think a proposed statutory will is not in the best interests of the testator you can file a formal objection with the Court of Protection and ask for a court hearing to present your objections.

What is the process for reconsideration of a Court of Protection order?

To request a reconsideration of a decision made by the Court of Protection, you need valid grounds such as:

• Significant new evidence.

• A procedural error during the initial court proceedings.

• Misinterpretation or misunderstanding of the facts or law by the court.

• Significant changes in circumstances since the original order was made,

Reconsideration is typically sought when the original decision significantly affects the welfare or rights of the person involved. The standard time limit for applying for reconsideration is generally 21 days from the date of the order.

To request reconsideration you should complete the Court of Protection form COP9 (Application Notice) and submit it to the Court of Protection along with the filing fee.

Following this, there will be a reconsideration hearing in which you will be expected to explain your position. Following this hearing, the court will reconsider the decision and may change the original order.

If you are not satisfied with the outcome of the reconsideration, you may have the option to appeal the decision. However, appeals must be based on a significant error in law or procedure, and you typically need permission from the court to appeal.

How can I prevent or address problems in Court of Protection cases?

Dealing with the Court of Protection can be emotionally challenging. Below are some tips to help you prevent and address common problems in Court of Protection cases.

Prepare thoroughly

As far as possible, familiarise yourself with the Court of Protection procedures and requirements. Knowing what to expect can help you avoid surprises and make sure you follow the right steps.

Seek legal advice early on

You don't always need a solicitor to deal with problems in the Court of Protection but they are very useful in providing valuable guidance on how to prepare your case and find your way through the court system effectively.

Be communicative

Matters in the Court of Protection often get messy when family members and loved ones don't communicate well with each other.

If possible, you should make a big effort to keep open lines of communication with all parties involved to prevent misunderstandings and catch problems before they escalate.

Consider the best interests of the vulnerable person

Above all else, you should prioritise the best interests of the vulnerable person. This principle is central to the Court of Protection's approach and should guide your decisions and behaviour.

You should, wherever possible, involve the vulnerable person in discussions and decisions. Even if they lack full capacity, their views and preferences should be considered and respected.

Resolve disputes informally

If a dispute arises, try to resolve it through open discussion with involved parties. Taking the time to listen and understand each other's perspective can often lead to a mutually acceptable solution without needing to involve the Court of Protection.

Mediation can also be an effective way to resolve disputes without going to court.

How can a solicitor help in addressing problems in Court of Protection cases? 

A solicitor with expertise in Court of Protection matters can:

• Help you understand the legal principles, rights, and responsibilities involved in your case.

• Guide you on how to present and substantiate your arguments with a focus on the best interests principle.

• Assess the strengths and weaknesses of your case, advise on the likelihood of success, and recommend the best course of action.

• Assist in preparing and submitting detailed applications to the Court of Protection.

• Apply for expedited hearings or interim measures.

• Represent you in court hearings.

• Facilitate mediation or other methods of alternative dispute resolution.

• Apply for a statutory will through the Court of Protection.

• Guide you through the Court of Protection's appeal process.

At Lawhive, our network of experienced wills, trust and probate solicitors can help guide you through probelms in the Court of Protection, offering personalised, professional support to achieve the best possible outcome for your loved ones.

Contact us today to find out more and get a free, no-obligation quote for the services of a specialist lawyer.