When a loved one no longer has the mental capacity to make important decisions for themselves, it can be a difficult and worrying time. You want to make sure that they are properly protected, their wishes and needs are respected, and that any decisions made on their behalf are in their best interests.

Families can face important questions about a relative’s care, where they should live, serious medical treatments or who they should have contact with.

Issues concerning a vulnerable person’s health and welfare can often be resolved and agreed between family members, professionals and carers. However, disagreements can arise about what is in a vulnerable person’s best interests and who should make decisions for them.

The Court of Protection

The Court of Protection is a specialist court that makes decisions on behalf of people who lack mental capacity to make specific decisions for themselves.  The Court of Protection can make decisions about someone’s health and welfare and property and affairs.

You may need to apply to the Court of Protection if there’s a disagreement about whether someone can make a particular decision themselves, or about what’s in their best interests. The Court of Protection can also review if any care or living arrangement is lawful.

Families, carers and professionals do not always agree about what is best for someone. This can be particularly difficult when an individual has complex care needs, there are existing tensions within the family or many people are involved in their care.

At Hugh James, we understand how difficult these situations can be. Our specialist Court of Protection disputes lawyers can advise you throughout this process and represent you in Court of Protection proceedings. We work with you to resolve these issues constructively and sensitively.

 

When the Court of Protection may need to be involved

The Court of Protection can make decisions about a wide range of health and welfare issues on behalf of a vulnerable person who lacks mental capacity. These include decisions about:

  • where they should live
  • what care they should receive, and what particular care arrangements are in their best interests
  • who they should have contact with, and whether any restrictions should be in place for their protection
  • travel arrangements
  • their social media and internet use
  • the sharing of their information
  • important decisions about marriage, relationships and engaging in sexual relations
  • serious medical treatment decisions

 

Deprivation of liberty

Sometimes care and living arrangements for someone who lacks capacity can involve restrictions on their freedom. Those arrangements may amount to a deprivation of the individual’s liberty and will need to be properly authorised.

The Court of Protection can decide on whether care packages or living arrangements that restrict someone’s freedom are lawful. It can also authorise arrangements that deprive someone of their liberty if they are proportionate, necessary and in their best interests.

The Court of Protection will take into account many factors when considering if someone is deprived of their liberty, including:

  • the nature and impact of any restrictions placed upon them;
  • the purpose of their care arrangements;
  • the setting in which their care is delivered; and
  • the duration and intensity of any restrictions.

The Court of Protection will also consider the person’s wishes and feelings, including whether they consent or object to their arrangements, as well as any distress they may be experiencing and any evidence of coercion.

 

How we can help

Our Court of Protection disputes team at Hugh James supports families and vulnerable people when disagreements arise about decisions for someone who lacks capacity.

We can support you at every stage of the process, from providing early advice when a disagreement is anticipated or first arises, through to making or responding to an application in the Court of Protection.

Where Court of Protection proceedings are needed, we can guide you through the process and represent you in relation to any applications, court hearings or complying with any court orders. We can also act quickly where an urgent decision requires the involvement of the Court of Protection.

 

Why choose Hugh James?

Court of Protection and health and welfare disputes can involve difficult decisions, complex family relationships and, sometimes, the need to act urgently. Our lawyers regularly deal with sensitive and high-risk cases involving both health and welfare and property and financial affairs.

That experience means we can quickly identify the issues that matter, explain your options clearly and help you decide the best way forward.

Our Court of Protection disputes lawyers form part of our Private Wealth Disputes team, which is one of the largest and most experienced specialist teams in the UK, recognised for our work in this area.

Key contact

Roman Kubiak TEP

Partner
Roman Kubiak is a Partner and Head of the market leading Private Wealth Disputes team. He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

Frequently Asked Questions

The Court of Protection is a specialist court that makes decisions for people who do not have the mental capacity to make those decisions themselves.

If family members disagree about a relative’s care, the first question is whether the person who needs the care has the mental capacity to make decisions for themselves. If they have the mental capacity to make decisions about their care, they will be able to make their own choices, even if family members disagree.

If the relative lacks mental capacity to make that particular decision, it will be necessary to consider whether anyone has formal legal authority to deal with the care decision on their behalf (for example, an attorney or a deputy).

Where no one has authority to make the decision, any decision made on the person’s behalf must be made in accordance with the Mental Capacity Act 2005 and in their best interests. This should involve input from those involved in their care, including family and professionals.

If there is a disagreement about what care is in the person’s best interests, the Court of Protection can become involved to decide on the issue.

It’s sensible to seek specialist legal advice at an early stage, particularly where the disagreement concerns significant decisions about a person’s care, living arrangements or medical treatment.

The Court of Protection can make decisions about a wide range of health and welfare issues, including:

  • where someone should live;
  • their care;
  • any medical treatment they should receive;
  • sexual relations;
  • marriage; and
  • contact

The Court of Protection can also make decisions about someone’s property .

 

The general rule is that each party bears their own costs in a health and welfare dispute. However, the court can depart from that general rule in certain circumstances including the reasonableness of any party’s conduct and the need for any proceedings.

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