Court of Protection

The Court of Protection is a specialist court to deal with decision-making for adults (and children in a few cases) who may lack capacity to make specific decisions for themselves. The new Court of Protection replaces the old court of the same name, which only dealt with decisions about the property and financial affairs of people lacking capacity to manage their own affairs. As well as property and affairs, the new court also deals with serious decisions affecting healthcare and personal welfare matters. These were previously dealt with by the High Court under its inherent jurisdiction.

The new Court of Protection is a superior court of record and is able to establish precedent (it can set examples for future cases) and build up expertise in all issues related to lack of capacity. It has the same powers, rights, privileges and authority as the High Court. There will usually be a fee for applications to the court.

In cases of serious dispute, where there is no other way of finding a solution or when the authority of the court is needed in order to make a particular decision or take a particular action, the court can be asked to make a decision to settle the matter using its powers. However, if there is a need for ongoing decision-making powers and there is no relevant power of attorney, the court may appoint a deputy to make future decisions. It will also state what decisions the deputy has the authority to make on the person’s behalf.

It is for the court to decide who to appoint as a deputy. Different skills may be required depending on whether the deputy’s decisions will be about a person’s welfare (including healthcare), their finances or both. The court will decide whether the proposed deputy is reliable and trustworthy and has an appropriate level of skill and competence to carry out the necessary tasks.

Receivers appointed by the court before the Mental Capacity Act are treated as deputies and keep their existing powers and duties.