The Court of Protection is the Court in England and Wales that hears cases and deals with matters relating to vulnerable individuals. The Court was established under the Mental Capacity Act 2005. A vulnerable person is a person who lacks mental capacity as defined under the Mental Capacity Act 2005, which includes elderly people suffering from cognitive disorders, such as Alzheimer’ s, dementia, Parkinson’s and stroke victims. A vulnerable person may also be a person who has learning difficulties, who lives with disabilities, who was involved in an accident, who has been on life-support for a sustained period of time, or someone born with learning difficulties and disabilities. In short, anyone may find themselves having to make an application the Court of Protection.
The Court of Protection will make decisions over whether someone has the mental capacity to make a particular decision; give a ruling on a one-off decision, such as whether someone should receive a specific course of medical treatment; appoint deputies for vulnerable people. There is an interface between the Court of Protection and Lasting Powers of Attorney. Lasting Powers of Attorney are put in place by people when they have capacity, to appoint people to act on their behalf if and when they lose capacity. The people you appoint under Lasting Powers of Attorney are called ‘Attorneys’ rather than ‘Deputies’. Sometimes Attorneys will find themselves in conflict over a particular situation, or perhaps every situation, and that may escalate to having to make an application to the Court of Protection for them to adjudicate. The Court has the power to remove Attorneys who have not been acting in the best interests of the vulnerable person.
Another interface between the Court and Lasting Powers of Attorney is when the Attorneys named become unable to act, perhaps because they have died or they become incapacitated themselves. In this instance, if the person who made the Lasting Power of Attorney has also lost capacity, someone willing to manage their affairs will have to apply to the Court to be named as their deputy. To protect against this, it is important when preparing your Lasting Powers of Attorney to appoint Attorneys on a joint and several basis and to appoint replacement Attorneys, where appropriate.
Druces’ Private Wealth Team advises on and assists with all matters relating to Lasting Powers of Attorney and the Court of Protection. The Team recently advised an individual who had been appointed as deputy for her son, who has lifelong physical and mental disabilities as a result of medical negligence. Our client was appointed as deputy on a joint basis alongside another individual, who claimed to be a professional, skilled in social work and acting as a deputy. As the deputyship progressed, it became apparent to our client that her co-deputy had no professional expertise whatsoever. The co-deputy was acting to the detriment of our client’s son and he was at real risk because of the co-deputy’s actions, and ignorance of procedure and protocol.
The relationship irretrievably broke down but before our client could lodge her own proceedings to remove her co-deputy, the co-deputy lodged an application to remove our client. Our client came to us after these proceedings had been lodged and a date for the Court hearing had been set. She was distressed and deeply worried about her son.
We advised our client on how to manage the situation until the hearing date, which had not been set for three months. Although the relationship had broken down, our client’s son’s affairs still needed to be managed, and particularly he needed access to funds to pay for his day-to-day needs. We also assisted our client in preparing her witness statement and collecting evidence to illustrate why she should be retained as a deputy.
Prior to the hearing, a directions hearing was held. The Official Solicitor had also been appointed to represent our client’s son. The vulnerable person in Court of Protection proceedings is referred to as ‘P’. At the directions hearing, we were able to agree a solution with the Court and the Official Solicitor that saw our client retained as her son’s deputy; the professional co-deputy removed and a new professional deputy appointed in her place.
The directions hearing was a resounding success. Although we did not believe our client deserved to be removed in situations such as this one, the Court will usually take the path of least resistance and remove both deputies in favour of a new deputy for a fresh start. Us, our client and her son were immensely pleased with the result.
Proceedings in the Court of Protection cover a broad range and they run slightly differently to the ordinary civil courts in England and Wales. It is important you have solicitors advising you who are experienced in how the Court operates and can give you the best advice.
If you find yourself in a situation similar to the one described above or anything in this article resonates with you, please contact either Paul Levy, Zoe Norton or your usual advisor in the Druces’ Private Wealth Team.
