Court of Protection

Coodes Solicitors / Personal Legal / Court of Protection

Court of Protection

The Court of Protection’s purpose is to protect and make decisions for people who lack mental capacity.

Mental incapacity can strike anyone, regardless of age, background or lifestyle. Illnesses such as dementia or Alzheimer’s disease, brain injuries and severe mental health issues can all be reasons why a person may be unable make their own decisions about their finances and/or personal welfare. If you believe that your loved one may need extra support, we are here to help.

With offices in Truro, Newquay, St Austell, Falmouth, Penzance, Holsworthy, Launceston and Liskeard, we are conveniently located and easily accessible for people across Cornwall and West Devon.

How our Court of Protection solicitors can help

We can help you with all matters relating to mental capacity and the Court of Protection. We understand that caring for someone who lacks capacity is an emotionally tiring job. It is likely you will want to support their independence for as long as possible and it can be difficult to accept when you or someone else may need to step in on their behalf.

We can provide practical advice and guidance and our expertise includes:

Helping to assess when someone might need help making decisions about their finances and/or personal welfare
Tailor-made applications to the Court of Protection for the appointment of a Deputy (someone authorised to make decisions on a person’s behalf)
Acting as a Professional Deputy or managing a person’s financial affairs on behalf of Deputies
Assisting with objections to applications for the appointment of a Deputy
Preparing and submitting annual reports to the Court of Protection
Making decisions about Lasting or Enduring Powers of Attorney including whether they are valid, objecting to their registration or removing Attorneys
Making decisions about someone’s health and welfare such as where they should live and the care they receive
Decisions in relation to someone who may be deprived of their liberty in a hospital or care home under the Deprivation of Liberty Safeguards (DOLS) or even in the community
Liaising with care providers and social services
Considering eligibility for NHS Continuing Healthcare
Associated legal advice, including:
- Mental health and community care advice – We often work closely with our dedicated Mental Health team to provide a comprehensive mental health and mental capacity service. We are independently recognised with the Law Society Mental Health Accreditation for our expertise in this area
- Advice for older people – our team includes members of Solicitors for the Elderly, an organisation that recognises lawyers with particular expertise advising elderly and vulnerable people
- Personal injury compensation claims where your loved one lost their mental capacity due to the fault of someone else – for example, a brain injury caused by an accident at work
- Conveyancing and residential property – for example, where you need to sell property on behalf of a loved one who has moved into a care home

Get in touch with our Court of Protection solicitors in Cornwall and Devon

To arrange an initial discussion with one of our Court of Protection lawyers, give us a call on 0800 328 3282 or fill in our simple online enquiry form and a member of our team will be in touch with you shortly.

We have local offices in Truro, Newquay, St Austell, Falmouth, Penzance, Holsworthy, Launceston and Liskeard. We can also arrange home visits in certain circumstances.

Why choose our Court of Protection solicitors?

Our lawyers are experts in dealing with issues in relation to mental capacity and the Court of Protection.

Our lawyers regularly deal with applications in relation to Deputies and Powers of Attorney and are top ranked by independent client guide, Chambers and Partners and our Private Client Court of Protection team leader, Richard Pollock, is specifically recommended for his skills.

Our Mental Health, Mental Capacity and Health & Social Care team deals with health and welfare applications and issues concerning capacity and deprivations of liberty. Team leader, Poppy Phipps is accredited by the Law Society to represent patients detained under the Mental Health Act 1983 and also specialises in dealing with all aspects of the Mental Capacity Act 2005 and the Court of Protection.

We invest heavily in our lawyers’ professional development so we can provide the highest level of support to every individual who seeks our advice. We have obtained a number of accreditations and professional memberships in recognition of our skills, including:

The Society of Trust and Estate Practitioners (STEP) – this qualification is essential for industry leaders in the area of family inheritance and succession planning. As members of STEP, our lawyers are recognised for their ability to support vulnerable clients among other skills
Solicitors for the Elderly (SFE) – our SFE members are fully qualified to help with every issue that is likely to affect you and your loved ones as you grow older, including providing assistance to and in respect of vulnerable individuals
Dementia Friends and Dementia Champions – most of our Court of Protection team are qualified to provide advice and support to individuals affected by dementia and their loved ones. As well as tailored legal advice, we can also help you access other support services
The Private Client Section of the Law Society – this is another essential qualification for experts in the area of mental capacity and other private client work, such as Wills and Probate

For a full list of our qualifications and professional memberships, please visit our Accreditations page.

What is mental capacity?

If a person lacks mental capacity, it means that they cannot make a decision when it needs to be made, for example, because of:

An illness such as dementia
A condition such as stroke
A brain injury
Severe mental health difficulties
Severe learning difficulties

It can be difficult to tell when someone might need help making their own decisions. For example, a person may be able to decide what to buy during the weekly food shop but may be unable to make decisions about paying their bills or managing their pension.

The Mental Capacity Act provides a legal test to help assess whether someone lacks mental capacity. We can help in obtaining, or challenging, a capacity assessment and provide advice about any extra support which may be available or how the Court of Protection may be able to help.

What does the Court of Protection do?

The Court of Protection was created to help people who lack mental capacity. Its duties include:

Deciding whether someone lacks mental capacity to make a particular decision
Appointing a Deputy – someone authorised to make certain decisions on a person’s behalf
Making urgent and emergency orders – for example, if someone requires immediate medical treatment but lacks the capacity to consent
Making Statutory Wills where someone cannot make a Will themselves
Making decisions in relation to a person who is deprived of their liberty (their actions and movements are being restricted)

Court of Protection Deputyship

Deputyship applications

A Court of Protection Deputy is someone who is authorised to make decisions on behalf of a person who lacks mental capacity. If your loved one lacks capacity and they do not have a Power of Attorney in place, it may be necessary to make a Deputyship application because you will not have legal authority to handle their personal or financial affairs for them.

There are two types of Court of Protection Deputy:

Property and Financial Affairs Deputy – to do things like pay bills, manage bank accounts, collect benefits or pensions payments and sell property
Personal Welfare Deputy – to make decisions about things like a person’s day-to-day routine, their medical treatment and where they should live

We have a dedicated team who can assist you with Deputyship applications and ensure that it provides all the power you need to effectively manage your loved one’s affairs. For example, a Deputy is unlikely to have the power to buy or sell property on behalf of the incapacitated person unless the order gives specific permission to do so.

Advice for Deputies

As well as assisting you with the application itself, we also advise Deputies with the ongoing management of a person’s affairs.

Family members often feel they need advice and assistance in understanding their role as Deputy and the obligations upon them. Some, whilst happy to be the Deputy, do not feel comfortable with the ongoing administration and the financial reporting that is required.

We will tailor our advice to provide the level of support you need. We often assist Deputies in the long-term but we are also happy to provide advice in the short-term and in relation to one-off decisions.

Professional Deputies – we can act for your loved one on your behalf

There are occasions where family members wish for their loved ones to be protected and understand the need for a Deputy to be appointed but perhaps for personal reasons do not wish to take on this role themselves.

We can (and regularly do) take on the role of a Professional Deputy ourselves. This is something we have done for a number of years. Among our team, Richard Pollock is a member of the Office of the Public Guardian’s panel of approved Deputies, emphasising our commitment to helping those that lack capacity.

Statutory Wills

There are many cases where a person loses mental capacity suddenly (for example, they have an accident that results in a brain injury) or they simply never get around to making or updating their Will. In these situations, it is often a good idea to apply to the Court of Protection to make a Will on their behalf to:

Make sure the person’s wishes are set out in writing and their money and property is passed down to their loved ones
Reduce the amount of Inheritance Tax that will fall due on the Estate and generally make the Estate more tax efficient
Amend an out-of-date Will to truly reflect what the person’s wishes would have been

We can provide advice on whether your loved one may need a Will and whether they lack the capacity to make one themselves. We can also handle the Statutory Will application process on your behalf.

For more general information, please visit our Making a Will page.

Health and Welfare Decisions

When someone lacks capacity to make decisions about their health and welfare these decisions may need to be made by someone else. Where an agreement about a person’s best interests cannot be reached between professionals, family members, carers and the person themselves, the Court of Protection can make decisions based on what it considers as being in the best interests of the person concerned.

Health and welfare choices can be a major concern for those lack mental capacity, their families and loved ones and also people who are planning for their future and the possibility that they may one day lose the capacity to make such decisions. Our dedicated team can support and advise you in relation to the various applications for health and welfare.

This can include:

decisions about where a person should live
decisions about what care a person should receive
decisions about what contact a person should have or not have with other people including the use of social media
decisions about whether a person should have serious medical treatment
decisions about whether a person should be prohibited from having sex
whether a person does or does not have capacity for a certain decision or decisions
disputes regarding existing Powers of Attorney applications for the removal of Attorneys and Deputies

Legal aid may be available for health and welfare matters in the Court of Protection.

Deprivation of liberty

The right to liberty is one of our basic human rights, so it is very important that if it appears necessary to restrict a person’s liberty for their own safety it is done so legally. Someone who lacks capacity to make decisions about where they should live and the care they receive may be deprived of their liberty. This can happen in a care home, hospital or in a community setting such as the person’s own home.

Local councils and hospital trusts are able to authorise the deprivation of liberty of people in residential care homes and hospitals if it is considered to be in the best interests of that person. This may include:

The use of locked doors
Continual monitoring or supervision
Physical restraints
The use of some types of medication

The Mental Capacity Act provides safeguards to ensure that people are not unlawfully deprived of their liberty. The Deprivation of Liberty Safeguards (DoLS) are vital legal guidelines that must be followed when depriving a person of their liberty. These safeguards include considering the person’s own wishes and feelings and ensuring that their care plan is reasonable, proportionate and encourages the least restrictive option for each decision.

A person who is deprived of their liberty has the legal right to appeal to the Court of Protection and our team is experienced in acting on behalf of the person themselves with the support of a litigation friend and on behalf of family members.

If you are concerned that your loved one’s liberty is being restricted improperly or unnecessarily, we can provide advice about challenging the authorisation. Concerns may arise if you think that:

The regime is not in their best interests, proportionate or the least restrictive;
The DoLS have not been followed properly;
The person themselves is distressed, upset or objecting to the deprivation of their liberty; and/or
The person concerned actually has mental capacity to decide their own movements and treatment

Legal Aid is available for people subject to an authorisation depriving them of their liberty in a hospital or care home and may be available for family members or those who are deprived of their liberty in other settings.

Mental health

We work closely with our dedicated Mental Health team to provide a comprehensive mental health and mental capacity service. We are independently recognised with the Law Society Mental Health Accreditation for our expertise in this area. We can assist with a wide range of related issues, including:

Helping individuals access the appropriate support
Providing advice about your legal rights under the Mental Health Act 1983
Representing individuals who have been detained under the Mental Health Act 1983
Advising the carers of disabled and vulnerable adults

For further information, please visit our Mental Health and Community Care page.

Advice for older people and their families

We have a dedicated Elderly Client Services team. As accredited members of Solicitors for the Elderly, we are independently recognised for our specialist expertise in providing advice about the unique legal issues facing older people. This team works closely with our Court of Protection specialists to provide an integrated service covering mental capacity, care, living arrangements and conveyancing, disputes involving older people and more.

Our Elderly Client Services team also includes trained Dementia Friends and Dementia Champions who are fully qualified to provide advice and support to individuals living with dementia and their loved ones.

Court of Protection

Personal Legal

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