17th Dec 2021

Court of Protection FAQ

What is the Court of Protection?

The Court of Protection is a Court which makes decisions about people’s finances, health and care, if they cannot decide these matters for themselves because they lack mental capacity. 

The Court of Protection can:

  • Determine whether a person has the mental capacity to make a particular decision for example, establish whether a person can decide to remain at home or move into a Care home.
  • Appoint a financial or welfare Deputy to act on a person’s behalf.
  • Decide a particular matter, for example, authorising gifts or donations including allowing someone to live in a property owned by the person below market rent.
  • Make decisions about Enduring and Lasting Powers of Attorney.
  • Make statutory Wills
  • Decide whether a person can be lawfully deprived of their liberty

How long do Court of Protection applications take?

This depends on the type of application and whether it is likely to be contested. An application to appoint a Deputy where no objections are raised could take up to six months, whereas a contested application to remove a Deputy or Attorney may take up to 12 months or even longer.

What does the Court of Protection consider when making decisions?

The starting point is that all decisions must be made in the best interests of the person who lacks capacity. In deciding this the Court will look at several factors including:

  • The person’s past and present wishes and feelings as far as they can be ascertained
  • The beliefs and values and any other factors that would influence the decision that the person would have made
  • The views of family and friends and people involved in the person’s life

Court of Protection Fees – Who pays?

The general rule is that the costs will be paid for out of the estate of the person who is the subject of the proceedings. However, the Court has the discretion to depart from this or make any other order in relation to costs as it sees fit, which may include ordering a party to pay their own costs and/or the costs of another party. Factors which the Court may consider in departing from the general rule may include:

  • The conduct of the parties, for example, whether it was reasonable for a party to raise, pursue or contest a particular matter and the manner of a party’s response.
  • Whether a party has succeeded on part of their case.
  • The role of any public body involved in the proceedings.

What are Statutory Wills?

A statutory Will is a Will approved by the Court of Protection on behalf of a person who is incapable of making a valid Will because they lack the necessary testamentary capacity. If approved, an authorised person will sign a Will on behalf of the person who lacks capacity in the presence of two witnesses. It will be then sealed by the Court.

 

Kate Atkins is a Senior Associate in Berwins’ Life team and specialises in Court of Protection matters. If you wish to get in contact with Kate, you can either call her on 01423 542 783 or email KateAtkins@Berwins.co.uk.

Be sociable. Share!

Get Social

Connect with us on LinkedIn

LinkedIn
  • L500 60 Px
  • Chambers 60
  • Lexcel Accredited
  • Investors In People Silver 2
  • Conveyancing Quality
  • Ce Badge 60 Px
  • Carers Charter Logo 60 Px