Court of Protection Welfare Issues and Costs
Posted: 17th July 2024
by Eilish Ferry-Kennington
It is commonplace for a schedule of loss to include costs arising from a conclusion that the claimant lacks capacity to manage their finances or to litigate the proceedings, e.g. the appointment of a property and affairs deputy. However, we are increasingly being asked to provide expert evidence in relation to existing and potential future Court of Protection welfare matters, which can be recovered as a head of loss.
Where the claimant is assessed as lacking capacity to make welfare decisions, this may lead to their case being considered by the Court of Protection. The Mental Capacity Act sets out that capacity is specific to the decision being made (“the matter”), welfare decisions can relate to issues such as the care a person receives, where they live, their contact with others, use of internet and social media. The most personal issues, such as sexual relations and marriage can become the subject of capacity assessments and Court of Protection proceedings. The Court of Protection becomes involved in welfare decisions in order to:
- Resolve best interests disputes
- Determine whether or not a person has capacity to make a certain decision
- Authorise care packages that amount to a deprivation of liberty in the community
As with all legal proceedings, Court of Protection proceedings come at a cost and it is important to ensure any past or future costs are included in the schedule of loss.
Top tips
What to look out for and how to know whether welfare issues may arise:
- Capacity assessments – if capacity evidence is being obtained, it may be appropriate to ask the expert to assess capacity to make certain welfare decisions, e.g. about care, residence, internet and social media, contact with others.
- Are there disputes about welfare issues, or are they likely to arise in future? Be alive to potential issues that may need to be resolved by the COP.
- Does the claimant’s care package amount to a deprivation of liberty? Are they subject to a high level of supervision?
If any of the above arise, it may be sensible to consider whether Court of Protection welfare costs will need to be included in the schedule of loss.
Should you wish to speak to one of our experts about Court of Protection Welfare issues, please email us at [email protected].