The Court of Protection is a specialist court which makes specific decisions for people who lack capacity to make decisions for themselves, particularly where there are disputes about whether a person has capacity or not, or as to what decision should be made in their best interests.

The Court also appoints Deputies to make decisions on behalf of people who lack capacity, where that person does not have an attorney appointed under a Lasting Power of Attorney. Even where an attorney has been appointed, whether in relation to property and affairs, health and welfare, or both, disputes can and do still arise which require the Court of Protection’s judicial intervention.

It is fundamentally important to understand how mental capacity is assessed and how decisions must be made on behalf of people who lack capacity, in order to avoid disputes in the Court of Protection or, if proceedings are unavoidable, to navigate them swiftly.

Anyone, at any time, can suffer a deterioration in the functioning of their brain, such that they become unable to make decisions for themselves. This might be the result of a specific form of dementia, a brain injury, degenerative disease or other diagnosed condition. At such a time, any potential disputes will inevitably take a high emotional, reputational and financial toll on the individual, their family and the individual’s estate.

This is particularly the case where an individual:

  • manages complex financial portfolios, perhaps including multiple properties, businesses, investments, and valuable assets. This requires careful planning and decision-making. When an individual’s mental capacity becomes compromised, it could lead to confusion or mismanagement of these assets, potentially resulting in financial losses or disputes among family members.
  • has been involved in sophisticated estate planning to ensure smooth wealth transition to the next generation, or to support charitable causes. Mental capacity and best interests disputes can disrupt these plans, requiring the Court of Protection to step in and make decisions on behalf of the individual, which may not align with their original intentions.
  • is part of a complex family, including blended families, multiple heirs, and diverse financial or personal interests. In such cases mental capacity and best interests disputes can exacerbate family tensions, as different family members may have conflicting views on whether a person lacks capacity and/or how it is best to manage the individual’s assets and health or welfare decisions.
  • values privacy. Proceedings in the Court of Protection are increasingly held in public, with press attendance, and parties are often identified. While this is important for the purposes of justice and transparency, it can feel incredibly stressful and invasive for the individuals involved.
  • requires specialised medical or health care and has unique healthcare or care preferences. Disputes frequently arise between family members or healthcare providers about the best course of action where someone lacks capacity.
  • is particularly vulnerable to financial exploitation or abuse to due to their wealth or isolation. Without proper safeguards in place, an individual’s health, safety, wealth and assets may be at risk from abuse, mismanagement or theft.

It is important that individuals proactively understand mental capacity, best interests and the role of the Court of Protection in order to protect their interests, preserve their legacy, and ensure their healthcare and personal wishes are respected.

Engaging proactively in comprehensive estate planning, and creating robust advance planning documentation, including Lasting Powers of Attorney, is, of course, highly advisable. However, where disputes arise despite that planning, seeking expert legal advice as quickly as possible is essential in order to mitigate the impact that any dispute could have.

The Court of Protection operates in an inquisitorial, rather than adversarial, jurisdiction. That is to say that the ambit of any litigation before the Court is a matter for the Court and not for the parties. Cases can take unexpected turns and spiral into issues not intended by those involved. Because of the nature of proceedings in the Court of Protection, the subject matter, the needs of the clients and the very specific rules that govern proceedings before the Court, clients need to ensure that those who they instruct are experts in their fields and experienced in acting for clients in the jurisdiction.

If you have questions about a case involving a mental capacity and/or best interests dispute or a case coming before the Court of Protection, please contact Zena Bolwig.

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This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.