How much difference has the Court of Protection made?

As the Court of Protection reaches its tenth anniversary, Richard Pollock of Coodes Solicitors’ Wills, Probate and Trusts team, explains what it does and how it makes difficult decisions.

What is the Court of Protection and what does it actually do?

Very simply, the Court of Protection deals with:

• The property and financial affairs
• The health and personal welfare
• The deprivation of liberty

of people who unfortunately do not have sufficient mental capacity to make their own decisions.

Its powers include:

• Deciding if an individual lacks mental capacity
• Allowing someone to make a ‘one off’ decision on behalf of an individual lacking capacity
• Appointing a Deputy to make future ‘on going’ decisions for someone who lacks capacity
• Making decisions about Powers of Attorney, and in particular if their registration is opposed
• Deciding if an individual lacking in capacity should be deprived of their liberty

The majority of the Court of Protection’s work revolves around property and financial affairs, although its other areas continue to grow.

What happened before the Court of Protection was introduced?

Prior to the 2005 Act, the law had to consider the so called ‘substitute judgment test’ – namely what the individual concerned would have decided had they had the necessary capacity. However, the current test in property and financial affairs cases is to consider what is in the individual’s ‘best interests’, especially in situations where a statutory Will or gift is to be made.

How does the Court of Protection make decisions?

A number of recent cases have highlighted what the Court of Protection should take into consideration when deciding ‘the best interests’ of an individual lacking capacity. This includes the degree to which the individual’s own wishes and feelings should be taken into account, together with whether the individual should be seen as doing the right thing.

One report of a 2010 case states that an individual’s “expressed wishes should not be lightly overridden”. On the other hand, a 2011 case held that a valuable painting should be sold so as to pay care fees, rather than perhaps the more obvious view that the painting should be left to the family.

Ultimately, each case has to be considered on its own particular facts and merits. ‘One size fits all’ does not apply. Inevitably, that has produced some inconsistency in what may seem similar cases but which result in very differing decisions. The key point, however, is that the old ‘subjective test’ has now become an ‘objective test.’

For advice on any of these issues, contact Richard Pollock in Coodes Solicitors’ Wills, Probate and Trusts team on 0800 328 3282 or info@coodes.co.uk.