When a loved one loses the capacity to make decisions about their welfare or finances, it’s crucial to ensure that appropriate measures are in place to support them.
If disputes arise over these arrangements, the Court of Protection plays a vital role in resolving disagreements and safeguarding vulnerable individuals.
What does the Court of Protection do?
The Court of Protection deals with a wide range of disputes concerning individuals who lack mental capacity.
Common cases include:
- Statutory will disputes
- Disputes about a person’s capacity to make decisions
- Family disagreements over who should make decisions on behalf of a vulnerable loved one
- Arguments about best interests of a vulnerable person
- Issues relating to Power of Attorney or Deputyship applications
- Claims about the management of a vulnerable person’s affairs by an attorney or deputy
Statutory wills
What is a statutory will?
The Court of Protection makes statutory wills on behalf of individuals who don’t have the capacity to make their own will.
This can even be done in cases where the vulnerable person has an existing will, for example, when:
- There have been significant changes in family circumstances
- Tax laws have changed since the original will was made
Grounds for challenging a statutory will
You may contest a statutory will if:
- It doesn’t reflect the wishes of the person the will is for
- Your loved one had capacity to make a will at the time the statutory will was made
- The deputy hasn’t acted in the best interest of your loved one
Power of attorney vs deputyship
What is the difference?
A power of attorney is appointed personally by an individual before they lose capacity.
A deputy is appointed by the Court of Protection on behalf of the individual where they have lost capacity without appointing a power of attorney. For the Court to appoint a deputy, an application must be made, and the process usually takes 4 to 6 months.
Can attorneys or deputies be removed?
Yes. Attorneys or deputies may be removed if:
- They aren’t acting in the best interests of the vulnerable person
- They have become incapable of performing their duties
- They have acted outside their legal powers
You can request removal or changes to authority through the Court of Protection or the Office of the Public Guardian.
Can I still make decisions if I have an attorney or deputy?
Yes, you can still make decisions provided you have mental capacity.
Even if you lost capacity at some point, you may make decisions and take control of your affairs provided if a medical professional confirms your capacity has returned.
What happens when the vulnerable person dies?
Once the individual passes away:
- The attorney or deputy’s role ends immediately
- They must notify the Office of the Public Guardian of the death
Costs of Court of Protection disputes
In cases that concern the personal welfare of a vulnerable person, the general rule is that there is no order as to costs and so each party bears their own costs.
Where the cases relate to the financial and property affairs of a vulnerable person, the general rule is that the costs shall be paid by the vulnerable person or their estate.
In either case, the Court has discretion to make a different order as to costs.
If you’re facing a Court of Protection dispute our experienced private client team can guide you through every step. Contact us today to protect your loved one’s rights and ensure their best interests are protected.
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