Court Of Protection

The Court of Protection is an institution based in London which was created in its current form in 2007 to make decisions on behalf of those who lack the mental capacity to do so for themselves. The Court of Protection derives its powers from the Mental Capacity Act 2005 and represents those who are vulnerable and incapacitated.

It works closely with the Office of the Public Guardian (OPG), which has a supervisory role for those who are associated with the Court of Protection (such as Attorneys and Deputies). The OPG has the power to supervise and investigate the actions of Attorneys and Deputies and is involved in bringing cases to Court for the removal of Deputies and Attorneys who have not carried out their role appropriately.

The vulnerable and incapacitated person that an application is brought in relation to is known throughout the proceedings as “P”.

Common Applications which are brought before the Court of Protection include:

Deputyship  / Deputy Order

This is an application made on behalf of someone who lacks mental capacity to manage their affairs and who does not have a valid Power of Attorney in existence. The application is for the Court to appoint a person or persons to make these decisions for P on an ongoing basis.

Statutory Will

For those who have lost the ability to make a valid Will, an application exists for a person to apply to the Court for a Will to be created or amended on behalf of the person who lacks capacity (“P”). Lots of evidence is required for this application and there must be a good reason for the suggested Will to go ahead. Usually, the Court of Protection will appoint the Official Solicitor (known as the “OS”) to represent and act as an impartial professional for P in relation to the application.

Gifting Applications

Many are unaware that Attorneys and Deputies are not permitted under their authority to freely gift any assets belonging to P. In fact, the powers relating to gifting are fairly limited and if in doubt, an application to the Court should be made for permission to make the gift in question.

Trustee Applications

This is an application solely to appoint an additional Trustee to act on behalf of the incapacitated person. It is required most commonly in situations where there is co-ownership of land or property before such land or property can be dealt with.

Applications by existing Attorney / Deputy

The Court of Protection also deals with any number and variety of applications by existing Attorneys and Deputies, such as permission to sell or buy property, permission to deal with an estate for a deceased relative of P or to pursue legal action in a personal injury claim or to recover assets lost through financial abuse.

You may also be interested in our pages Professional Attorneyship and Deputyship Management and Acting as an Attorney or Deputy.

Talk to Tollers

For specific advice regarding the Court of Protection, Talk to Tollers, we are here to help. Call 01604 258558 or complete the form below.

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Our Court Of Protection Experts

Tonina Ashby
Head of Elderly and Vulnerable Client Unit
Tonina specialises in Court of Protection and Elderly Client affairs...
Sharon Brown
Senior Associate Solicitor
Sharon offers free monthly advice clinics at Age Concern Stevenage and Garden House Hospice...
Leigh Chia
Paralegal
Leigh is a paralegal and supports the EVCU with clients who require care by assisting to create Lasting Powers of Attorney, ensuring that their funding has been correctly assessed...
Emma Wesley
EVCU Manager
Emma has been a member of our specialist Elderly and Vulnerable Client Unit (“EVCU”) since it was set up in early 2013...
Tonina Ashby
Head of Elderly and Vulnerable Client Unit
Sharon Brown
Senior Associate Solicitor
Leigh Chia
Paralegal
Emma Wesley
EVCU Manager
Meet the Full Elderly And Vulnerable Clients Team

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