Court of Protection applications

The Court of Protection is the arena where decisions are made on behalf of people who lack the mental ability to make those decisions themselves.

The tests for whether someone can make their own choices vary: some decisions can be so simple that it is not necessary to have paperwork, some can be delegated by a Lasting Power of Attorney, or the Court can appoint a deputy to make decisions on behalf of the incapacitated person.

Some decisions cannot be delegated at all and the Court will consider those decisions based on the law and the type of question asked.  You may be familiar with court decisions on the right to stop medical treatment, or the decisions leading to the separation of conjoined twins. These hit the headlines, but most decisions made are quite mundane.

Statutory will applications
Only an individual with sufficient mental awareness can make a will. The Court can also make a will on behalf of that person, having examined the circumstances.

Any individual can make gifts if they have the necessary mental awareness to do so. However, this power cannot be delegated and an attorney for an incapacitated person cannot use their powers to make gifts that are anything more than seasonal and relatively small. For example, Easter eggs, book tokens, etc. Any gifts of substantial sums of money, or valuable assets, must be ratified by the Court of Protection, as they are there to protect the interests of the individual on whose behalf the gift is being made.

Sometimes attorneys or deputies need additional authority or guidance than that included in the original order or power. This might be for the sale of a house to a family member, or on the re-organisation of family company shares. In any circumstance where the incapacitated person might not be best served, potentially or actually, clearance should be sought. If the Court rules that the attorney or deputy exceeded the power given to them, the transaction could be voidable.

The Court also makes decisions on the change of deputies, as part of the deputy appointment work.

Most of these applications are bespoke: they rely entirely on the circumstances of the individual. The Court needs to have plenty of information on which to base its decision on behalf of the vulnerable person.  If any application is contested, these costs can escalate quickly.  However, to fail to get the Court’s approval to any particular course of action, where that approval is needed, could ultimately lead to far greater costs.

Contact us to discuss your circumstances
Contact our team for advice on whether a specific Court of Protection application needs to be made in order to authorise a particular transaction, or series of transactions, or to make a statutory will on behalf of somebody who lacks capacity to make their own will. Our usual approach is to have an initial no obligation phone call to explore your needs and circumstances. During the conversation we will be happy to discuss our fees and offer you an appointment at one of our offices. Please ring your local Boys & Maughan office, use the form on this page to drop us a line, or view our team profiles and contact one of our lawyers directly.