Court of Protection Disputes
Where a person lacks capacity to make decisions about their own health and welfare or property and affairs, a decision must be made in their best interests.
Common disputes in the Court of Protection include:
- Whether a person has the mental capacity to make a certain decision for themselves;
- Best interests disputes;
- Disputes particularly relating to an individual’s health and welfare;
- Objections to the registration of a Lasting Power of Attorney;
- Disputes about the appointment of a deputy;
- Challenges to statutory will or gift applications.
A person must be assumed to have capacity to make their own decisions unless it has been shown that they lack capacity around a certain issue.
Capacity is specific to both the decision at hand and the time that the decision is being made. There may be a dispute about whether a person can make a decision for themselves. It may therefore fall to the Court to consider the capacity assessments and opinions and make declarations about capacity.
In some cases a person may be thought to lack capacity to make a decision but actually they just need the right assistance, e.g. help to understand the relevant information or to communicate their decision. Only once a person is found to lack the capacity to make a decision can that decision be made on their behalf. Such decisions must be made in the person’s best interests.
A best interests decision is a balancing exercise, taking into account the current and past wishes and feelings of the person involved, the views of family members and others involved in their care and any other relevant factors. There are often differences of opinion about the best interests of a person who lacks capacity.
Health and welfare disputes
In terms of personal welfare, if there is agreement about an individual’s best interests, it is often not necessary for the Court to be involved in decision making. However, where there is a dispute, for example there are differences between the person’s own views, those of the local authority and the person’s family, it is for the Court of Protection to step in, consider the evidence and make the decision.
The Court of Protection is often asked to make decisions about:
- Where a person lives and whether it’s in their best interests to be deprived of their liberty – find out more;
- The care or medical treatment that a person receives;
- Who the person should have contact with;
- Whether the person has capacity to consent to sexual relations or enter into a marriage.
The Court of Protection is not limited to these areas and can make best interests decisions about a wide range of subjects which affect a person’s life.
Where a dispute has arisen and Court proceedings have not yet been issued, it can be possible to avoid the costs of going to Court by getting the right advice and representation early. We have experience of negotiating with local authorities, NHS bodies and other parties to proceedings to get the right outcome for our clients.
Objections to the registration of a Lasting Power of Attorney
When a Lasting Power of Attorney has been made, it must be registered before the attorney can start making decisions about a person’s property and affairs or health and welfare.
It will be registered at the time that the attorney believes that the person who appointed them has lost capacity. Disputes can arise about whether the LPA should be registered, e.g. because another family member or the person who made the LPA believes that they still have capacity to make the decisions for themselves. In those circumstances, the Court of Protection will resolve the dispute by deciding whether it is the right time for the LPA to be registered.
Disputes about the appointment of a deputy
When an individual already lacks capacity to make a Lasting Power of Attorney, an application can be made for the Court of Protection to appoint a deputy to make decisions on a person’s behalf in relation to their property and affairs or health and welfare. This can be non-contentious but disputes can arise about who the deputy should be, whether they are acting in a person’s best interests or whether a deputy should be appointed at all.
Where a deputy is found not to be acting in a person’s best interests, the Court of Protection can revoke the deputyship. Often, particularly in relation to health and welfare decisions, the Court will find it more appropriate to take specific decisions on the person’s behalf rather than to appoint a deputy.
Challenges to a statutory Will or gift application
There are certain limits on the powers of a deputy appointed to manage a person’s property and affairs. The deputy cannot give away substantial sums of money or make a will on the person’s behalf. In such circumstances, the Court of Protection can make a statutory will or approve a gift application.
When applications for gifts or statutory wills are made, there may be an objection, e.g. from a family member who does not believe that it is the best use of their relative’s money. If there is a dispute about such applications, the Court of Protection will consider the evidence relating to the competing views and make a decision in the person’s best interests.
Case Study 1 – Contact
Ruth is a young woman with a moderate learning disability. She is assessed as lacking capacity to make decisions about who she has contact with and the circumstances in which contact takes place. Ruth lives in an independent supported living placement with support workers on site.
On a number of recent occasions, Ruth has returned from visits to her parents’ home in a distressed state. Allegations have been made against her parents and a safeguarding investigation is taking place. Ruth’s parents deny the allegations and do not think there needs to be any changes to the contact they have with her. Ruth’s social worker is of the view that contact between Ruth and her parents should be stopped or alternatively it should be supervised and take place away from the parents’ home. Ruth continues to express a wish to see her parents but often seems upset after visits.
An application is made to the Court of Protection for a decision to be made about Ruth’s best interests in relation to contact.
Case Study 2 – Medical treatment
Hannah suffers a brain injury and is in receipt of life-sustaining treatment. There is a dispute between Hannah’s family and the treating team at the hospital about whether that treatment should continue. Hannah lacks capacity to make this decision for herself. The treating team at the hospital consider it to be in Hannah’s best interests for the treatment to continue but her family do not agree as they believe that she would not want to be kept alive in a minimally conscious state. The Court of Protection is asked to consider all of the evidence and make a decision as to whether to consent to the treatment on Hannah’s behalf.
Whenever the Court of Protection makes decisions, it is important for family members to be involved in proceedings as they have usually known the individual longer than anyone else. This means they often hold crucial information about the person’s long-held beliefs, values, wishes and feelings.
Our Court of Protection team has experience of acting for family members who are concerned about the decisions being made on behalf of a relative who lacks capacity. We have acted for individuals who lack capacity to instruct a solicitor. This involves taking instructions from a litigation friend, who may be a family member, advocate or the Official Solicitor.