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Court of protection solicitors
The Court of Protection looks after people without mental capacity. An Application is usually made to the Court of Protection to appoint a family member, friend or solicitor to act as Deputy to make decisions for those who lack capacity. Minton Morrill’s Court of Protection team provide these specialist services and are vastly experienced in all aspects of Deputyship particularly following successful medical negligence compensation claims against the NHS involving young children.
If you would like to read more information about medical negligence claims and how these are investigated by our expert team click here.
What is a Court of Protection?
The Court of Protection looks after individuals who lack capacity to make decisions for themselves. It can give these supervisory powers to someone else if there is a need for decisions to be made on an ongoing basis. Those given these responsibilities by the Court of Protection are called Deputies.
What is a Court of Protection Deputyship and when do you need one?
If someone has not made a Power of Attorney (a document setting out your wishes in the event that you lose mental capacity – click here for further information on this) and they lose capacity, then an application will usually be made to the Court of Protection requesting that a Deputy is appointed. For children, particularly those affected by negligent medical treatment resulting in brain injuries, Court of Protection involvement may be required when they are much younger. The Court will appoint a Deputy to take care of someone’s finances or health and welfare.
What powers does the Court of Protection have and what Orders can it make?
The Court of Protection decides whether someone has the mental capacity to make a particular decision for themselves. They can appoint deputies to make ongoing decisions for people who lack mental capacity. They can also give people permission to make one-off decisions on behalf of someone else who lacks mental capacity. The Court of Protection is able to handle urgent or emergency applications where a decision must be made on behalf of someone else without delay.
As well as dealing with Deputyships, the Court makes decisions about Lasting Powers of Attorney or Enduring Powers of Attorney and will consider any objections to the registration of these.
The Court of Protection also has the power to consider applications to make statutory Wills or gifts and are responsible for making decisions about when someone can be deprived of their liberty under the Mental Capacity Act.
When will the Court of Protection appoint a Deputy?
The Court of Protection will usually appoint a Deputy when a person is deemed to lack mental or legal capacity and has:
- More than £16,000 in cash after payment of debts; or
- Property to be sold or purchased; or
- A level of income that the Court considers necessitates the appointment of a Deputy.
How would someone lose mental capacity?
There are varous ways someone can lose capacity, such as suffering from Alzheimer’s, dementia, a stroke, brain injuries (including babies and children), post traumatic stress disorders or even severe learning disabilities. Speak to our expert lawyers about this so we can help assess capacity.
How is mental capacity assessed?
The Court of Protection ultimately decides if someone has lost their mental capacity. Usually, our Court of Protection Solicitors are instructed to make an Application to the Court of Protection and will obtain an independent opinion from a specialist doctor which will be presented to the Court. If the evidence of this doctor is that capacity is lost the Court of Protection are likely to agree with this.
Our experts have excellent relationships with independent medical experts and are able to arrange an appointment for capacity to be assessed quickly for an Application to the Court of Protection.
Some people may lack the mental capacity to make certain decisions but not others; for example, they may not be able to make financial decisions but they may still be able to take personal decisions such as deciding where to live or to make a Will. This is where professional experience with our team of specialist lawyers is crucial because we understand how sensitive this can be for the person affected and recognise that a person’s mental capacity needs to be constantly assessed.
How can our Court of Protection Solicitors can help you?
If you need to apply for Court of Protection Deputyship it is often because a child, friend or loved one has suffered deterioration in their health. Our team of experienced Court of Protection solicitors understand that this is a particularly sensitive time and will take the burden of making the Application to the Court of Protection into our hands so you can concentrate on your loved one.
Aside from submitting successful Court of Protection Deputyship Applications, we act as Professional Deputies for numerous people. We realise it can be a demanding, stressful and time consuming role especially coupled with busy lives with family and work. We are a trusted and capable team.
We continue to act for many long-term clients and have built up excellent and informed relationships as is evident by the positive feedback we have received over the years. We have set out below just a few examples of how our own clients have described the service we provide:
- “Efficient, friendly and honest. I didn’t feel as if I was being given false hopes.”
- “We found the service professional and supportive in what was a difficult and emotional experience we went through. Julia explained everything in a clear and understanding way.”
- “Julia [Morrill] is very professional, makes you feel at ease, explains things without using legal jargon and tells you how it is. What a lovely lady.”
Examples of our Court of Protection Work
Quite often new clients understandably have very little knowledge about the Court of Protection and how it operates. We have set out below some example of cases where our experts have helped:
- Thomas (name changed to protect confidentiality)
The head of our Court of Protection team, Julia Morrill, was instructed as a Court of Protection Deputy on behalf of Thomas, a child under the care of a Local Authoirty. Thomas’ mother had previously been in the care of the same Local Authority. She was pursuing a separate medical negligence claim with Minton Morrill’s team of expert medical negligence solicitors.
A very experienced Deputy was required because Thomas had been born into a very troubled family and there were numerous financial challenges to consider including possible criminal activities. Thomas was involved in further Local Authority care proceedings and Julia had to tread a very fine line between Thomas’ foster parents and his natual mother while the proceedings and the medical negligence claim proceeded. With Julia’s experience she was able to secure a full and proper support package for Thomas.
- Sally (name changed to protect confidentality)
Julia Morrill was appointed as a Professional Deputy by the Court of Protection for Sally, a young child who suffered a significant brain injury resulting in hearing loss as a result of a medical negligence. Sally’s family was very unorganised and erratic and sought Julia’s professional assistance with this to assist with a move to another part of the country. A new support network of carers and doctors for Sally was required. Julia Morrill and her team of Court of Protection specialists worked hard to set this support up and utilitised the financial assistance that the successful medical negligence compensation enabled Sally to access.
With Julia’s help, Sally transferred from a mainstream to special needs school and was able to access additional treatement and support therapy. A new house was also purchased with specialist adaptions for Sally’s medical needs as well as a 24/7 care plan put in place.
As well as assisting with the research and establishment of this new life for Sally, Julia’s ongoing role is to make sure the financial compensation Sally received through the successful medical negligence claim is spent properly and in her best interests. This takes experience and judgement to get value for money and to make sure that the compensation Sally receives is spent appropriately so that it will last for the duration of her life.
- John (name changed to protect confidentiality)
Sahida Patel of Minton Morrill’s Court of Protection team has recently been appointed as John’s Professional Deputy. John received damages for personal injury arising out of a fall in hospital and he now resides in a nursing home.
John’s physical condition is complex and he has a range of cognitive difficulties including memory, attention, drive, motivation and positivity. The Deputy currently has in place neuropsychology to try and reduce aggression levels and physiotherapy to maintain current health. The Professional Deputy is also considering additional therapies such as the opportunity for speech therapy to prevent any further regression of speech.
The action plan is to work in partnership with other professionals to develop a support plan for John as well as developing levels of independence. Sahida has already formed good relationships with all involved, including John’s parents and the case manager. Sahida will continue to manage John’s damages and decide as Professional Deputy what further means can be put in place to ensure that John receives the best quality of life.
Who can be appointed as a Deputy?
Anyone over 18 can be appointed as a Deputy but it is usually a family member, close friend or a solicitor. The Court of Protection will look at whether there is anyone who has a close connection to the person lacking capacity and would be able to carry out the role of a Deputy. If there is no one suitable then it may be appropriate for a solicitor to be appointed as a Professional Deputy.
Julia Morrill and her team specialise in Court of Protection matters and have the right expertise and experience to take decisions in the best interests of their clients on often complicated issues. They regularly act as Court of Protection Solicitors when multi-million pound medical negligence claims are settled by Minton Morrill’s expert Medical Negligence Solicitors and are responsible for managing compensation and using these funds to support their clients.
Minton Morrill Solicitors acting as Professional Deputy
Rather than acting as Lay Deputies, many of our clients prefer to put their trust in Minton Morrill to act as Professional Deputies. Being a Deputy is a complex and challenging role to fulfill.
We frequently find that family members do not want to risk their relationship with the person who requires protection changing or being damaged by becoming their Deputy, particularly if they have a close relationship. Understandably many people fear that the decisions they may have to make as a Deputy could be influenced by their love or protection for the person rather than a practical judgment. Others may feel concerned of potentially being put in a position where they feel uncomfortable rejecting requests for money or expenditure. The strain of other work and family commitments may also make the role of Deputy very challenging for a family member.
Minton Morrill’s Court of Protection professional Deputies take away these concerns. They build close relationships with clients and learn to understand their often complex needs and balance this with the ability to make difficult professional decisions based on their experience and judgment.
Our Court of Protection Solicitors predominantly act as Professional Deputies for children and adults as a result of multi-million pound settled compensation claims enabling the Claimant and their families to focus on moving forward with their lives and obtaining the care and treatment they need
As Professional Deputies we understand the law, codes of practice and what is required to act in accordance with court orders. We understand and manage many important issues such as benefits, taxes, security bonds, annual reports, investments of substantial funds and adaption’s of properties.
Our leading solicitors have excellent relationships with case managers and therapists so that we can tailor and manage care packages to ensure any clients’ needs are properly met. We also regularly liaise with financial advisors to ensure that compensation money and / or an individual’s funds are suitably invested and budgeted to ensure that person has the best quality of life available.
We have a national Court of Protection and Deputy presence across England and Wales based from our office in Leeds, Yorkshire. Our solicitors regularly travel to see clients across the country at their homes so that they feel more relaxed and do not have to arrange complex travel plans.
Types of Court of Protection Deputyships
There are two common types of Court of Protection Deputies:
- Property and Financial Affairs Deputies
Within this category of Deputy, Julia Morrill and her Court of Protection team will manage a clients’ property and financial affairs. This is likely to include:
a)Paying for care and other bills
b)Managing income and budgeting appropriately
c)Accessing state benefits
d)Dealing with any cash assets e.g. bank and building society accounts
e)Managing or selling property
f)Dealing with any capital assets and making sensible investment decisions
Most Court of Protection Deputies are appointed to manage Property and Financial affairs. It can be complicated, time-consuming and confusing work for those not accustomed to it.
- Personal Welfare Deputy
Personal Welfare Deputies are appointed when someone suffers from, for example, a progressive illness or profound learning difficulties. Julia Morrill and her team, when appointed in this capacity, make deicisons on behalf of their clients about medical treatment. Personal Welfare Deputies may also be appointed by the Court of Protection when there have been prior family disputes that could impact on a vulnerable person’s future care or if they are considered at risk of serious harm if left in the care of the family.
Personal Welfare Deputies often make decisions on the following issues:
- The amount of contact the vulnerable person should have with a particular person or seeking a Court order against such contact if the circumstances dictate this
- Assessing where the vulnerable person should live
- Managing a person’s care needs, specifically, directing that a person responsible for the vulnerable person’s care allows someone else to take over that responsibility
- Providing/refusing consent to authorise/continue treatment by a person providing healthcare to the vulnerable person
- Whether the vulnerable person has the capacity to decide to marry or have sexual relations
- Making decisions involving complex and ethical dilemmas, such as medical treatment.
Personal Welfare Deputies can be faced with upsetting and difficult decisions. It is a demanding role that again requires a lot of experience and judgment. Our team of Court of Protection Solicitors are leaders in their field in this area. We can assist you with difficult problems such as accessing and consenting to healthcare and community care services.
Disputes between families do often occur when it comes to highly sensitive issues such as the withdrawal of medical treatment and the type of care a loved one requires. These issues involve complex discussions, input from healthcare providers (that may be disputed) and sometimes proceedings in the Court of Protection. Our team can lead the way through this difficult process and help make sensitive and ethical decisions in the best interests of your loved one. Click here to read some first hand examples from our clients of our services.
Click here to read our FAQ page on Court of Protection and Deputyship. We would be delighted to speak with you to discuss any questions you have so feel free to speak direct to our lawyers now.
Deprivation of Liberty
In the case of Cheshire West and Chester Council v P  UKSC19, a person was deprived of their liberty if they were subject to continuous supervision and control and they were not free to leave.
It is unlawful to deprive someone of their liberty unless it is done in accordance with the rules under the Mental Capacity Act 2005. It should only be used if it is the least restrictive way of keeping you safe or making sure you receive the right medical treatment.
Your liberty can only be taken away under the Mental Capacity Act 2005 if:
- You are 16 or over
- You lack capacity to agree to restrictions
- The care home or hospital where you are staying has successfully applied for an authorisation from the Local Authority
- The deprivation of liberty safeguards have been followed or
- Where the Court of Protection grants permission
If you or someone you know is deprived of their liberty in a care home or the placement where they are living and want assistance in challenging this, please contact our Court of Protection department and we would be happy to assist.
Health and Welfare Decisions
These are day to day actions necessary for carrying out activities of daily living and include:
- Where you are going to live and/or who you will have contact with
- Washing, dressing or managing nutrition
- Shopping, buying essential goods and arranging personal care services
- Tidying or clearing your home if you are in hospital or residential accommodation.
- Help with communication
- Arranging social care services or a social care assessment.
If you have lost the capacity to decide about these actions, they can be carried out on your behalf by carers, family members and health and care professionals without the need for permission from a court as long as they are in your best interests and they are agreed by those persons involved in your care.
Health professionals and others must act in your best interests before taking certain steps that affect your care and treatment. Section 4 of the Mental Capacity Act 2005 has a best interests checklist which outlines what someone needs to consider before taking an action or decision for you while you lack capacity. Under this checklist the following points need to be considered:
- Consider your wishes and feelings: both your current wishes and those you expressed before losing capacity to make the decision, as well as any beliefs and values that are important to you.
- Consider all the circumstances relevant to you, like the type of mental health problem or physical illness you have, how long it is going to last, your age, whether you would normally take this decision yourself, whether you are likely to recover capacity in the near future and who has cared or is caring for you.
- Consider whether you will have capacity to make the decision in the future and whether the decision can be put off in the short-term. If you are experiencing severe mental distress, for example, will your distress ease in the near future enough to let you make your own decisions?
- Supporting your involvement in acts done for you and decisions affecting you.
- Consider the views of your carers, family or people who may have an interest in your welfare or people you have appointed to act for you.
When making best interest decisions on behalf of a person who lacks capacity to make the decision themselves, one should apply the five principles in Section 1 of the Mental Capacity Act 2005 which are as follows:
- A person must be assumed to have capacity unless it is established that he lacks capacity.
It is important to balance people’s right to make a decision with their right to safety and protection when they cannot make decisions to protect themselves. However the starting assumption must always be that an individual has the capacity, until there is proof that they do not.
- A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
It is important to do everything practical to help a person make a decision for themselves before concluding that they lack capacity to do so. The kind of support a person might need to help them make a decision varies. It depends upon personal circumstances, the kind of decision that has to be made and the time available to make the decision. It might include:
- Using a different form of communication (for example, non-verbal communication).
- Providing information in a more accessible form (for example, photos, drawings or videos)
- Treating a medical condition which may be affecting the person’s capacity or
- Having a structured programme to improve a person’s capacity to make a particular decision (for example, helping a person with a learning disability to learn a new skill).
- A person is not to be treated as unable to make a decision merely because he makes an unwise decision
Everybody has their own values, beliefs, preferences and attitudes. A person should not be assumed to lack capacity to make a decision just because other people think their decision is unwise. This applies even if family members, friends, or healthcare or social care staff are unhappy with the decision.
There may be cause for concern if somebody:
- Repeatedly makes unwise decisions that put them at significant risk of harm or exploitation or
- Makes a particular unwise decision that is obviously irrational or out of character.
These things do not necessarily mean that someone lacks capacity to make the specific decision in question but there might be a need for further investigation, taking into account the person’s past decisions and choices.
- An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
Section 4 of the Mental Capacity Act 2005 as set out above contains a checklist of steps to follow when making best interest decisions on behalf of a person who lacks capacity to do so themselves.
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
Before making a decision on behalf of someone who lacks capacity to make the decision themselves, they must always question if they can do something else that would interfere less with the person’s basic rights and freedoms. This is called finding the “least restrictive alternative”.
Where there is more than one option, it is important to explore ways that would be less restrictive or allow the most freedom for a person who lacks capacity to make the decision in question. However the final decision must always allow the original purpose of the decision or the act to be achieved.
If you or someone you know wants advice and assistance with best interests decisions on behalf of someone who lacks capacity to make the decision themselves, please contact our court of protection team and we will be happy to assist.
How to contact us?
If you, or someone you know, needs help and advice about Court of Protection Deputyship and would like to speak with our experts please contact us through the contact form or by telephoning to speak to our solicitors on 0113 245 8549.
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Our Experience of Court of Protection Claims
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