The Court of Protection (CoP), under the Mental Capacity Act 2005, makes decisions on financial or welfare matters for people who can’t make decisions at the time they need to be made because they ‘lack mental capacity’.
If a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA) is already in place, an Attorney or Attorneys will have been named, to make decisions on a vulnerable person’s behalf.
If, however, an individual has lost mental capacity without having previously granted a Power of Attorney, those who seek to look after their interests will apply to the CoP to be recognised as a Deputy which will allow them to handle their financial affairs and / or make welfare decisions. The Deputy could be a family member or a care professional.
When disputes over a Deputy or Attorney’s actions arise
Sometimes the CoP is asked to intervene when a dispute arises over the actions of a Deputy appointed by the Court or the decisions being taken by someone named as an Attorney in an LPA.
Common disputes include:
- Disagreements over the appointment of a Deputy or an Attorney
- Financial decisions or gifts (e.g. giving away a vulnerable person’s valuables) by a Deputy or an Attorney
- Concerns that a Deputy or an Attorney is not acting in the best interests of the vulnerable person
The CoP has the power to revoke the powers of an Attorney or Deputy where there is evidence that they have breached their duties or not acted in the best interests of a vulnerable individual.
Challenging a personal welfare decision
If a family member is concerned about personal welfare decisions being made by a care professional or care home provider, such disputes can often be dealt with, without the need to involve the CoP.
However, where a dispute cannot be resolved, the CoP has a duty to ensure that the interests of the vulnerable person are put before the interests of any other parties i.e. the care home or relatives.
Statutory Will disputes
Sometimes the CoP is asked to make a Statutory Will on behalf of a vulnerable person lacking capacity. In such cases intended beneficiaries are notified. If an individual is unhappy with the content of a Statutory Will, there may be grounds to object but it is important to seek prompt legal advice.
How can Palmers help?
Our specialist disputes team have experience of dealing with Court of Protection disputes and can provide advice and practical support including representing you at court.
For more information please get in touch with us today.
