Incapacity and the Court of Protection

The Court of Protection was established by the Mental Capacity Act 2005 to safeguard the rights of people who lack capacity to make decisions about their property and affairs and personal welfare.

Where a person lacks capacity to make a decision about his or her property and affairs or personal welfare, someone else will need to be appointed to make those decisions on behalf of that person. Often this is an attorney appointed by that person at a time when they had capacity to do so under an Enduring or Lasting Power of Attorney (EPA or LPA). If no such person has been appointed, then the court will appoint a deputy to act.

Similarly, if a person no longer has the capacity to make a will, the Court of Protection may order that a will is executed on their behalf. Such a will is known as a statutory will.

There are occasions where applications to the Court of Protection are contested, usually by family members. These include occasions where family members disagree and object to the appointment of a particular person as an attorney or deputy; where there are concerns that an attorney is not acting in the best interests of a person; or where there are objections to the terms of a proposed statutory will.

In those circumstances, we can advise on applications to the Court of Protection generally both in terms of procedure, evidence required and the orders the court can make.

For further details of the services of our capacity and Court of Protection team, click here.