Mental Capacity Law and Court of Protection (COP)
What can we help you with?
- Representing you if you are a party to Court of Protection proceedings
- Representing the person that the proceedings are about (often referred to as ‘P’)
- Representing a litigation friend appointed in a Court of Protection case (including advocates appointed as a litigation friend)
- Helping clients to challenge a Deprivation of Liberty Safeguards (DOLS) authorisation in the Court of Protection.
- Advising a person who is appointed as a Relevant Person’s Representative (RPR)
- Advice about assessments of mental capacity
- Advice on disputes about the best interests of a person who lacks capacity
- Help when someone is deprived of their liberty without authorisation or protection
- Advice where there is a dispute about a Lasting Power of Attorney or Deputy
Amy Butler, Director at Atkins & Palmer, can act as an Accredited Legal Representative (ALR) in Court of Protection proceedings.
What is the Court of Protection?
The Court of Protection makes decisions for people who don’t have the ability to make the decisions at the time they need to be made. The ability to make a decision is called mental capacity. The court can make decisions in relation to a person’s finances and property or health and welfare.
The Court of Protection decides whether someone has capacity to make a decision at a certain time. If the person does not have the capacity to make the decision, the court can make the decision for them. The decision must be made in that person’s best interests.
The court can sometimes give permission for someone else to make a one-off decision for a person who lacks capacity. Or the court can appoint a ‘deputy’ to make ongoing decisions for someone who lacks capacity.
The Mental Capacity Act 2005 established the Court of Protection. The Mental Capacity Act 2005 is the legal framework for assessing someone’s mental capacity and making decisions in their best interests.
The Court of Protection makes a wide range of decisions for people who lack capacity. The court is often asked to deal with the following issues:
- Where a person lives
- What care a person receives
- Whether they can sign a tenancy agreement or give up a tenancy
- What medical treatment a person should receive
The Court of Protection is based in London but often judges sit in courts around the country to decide Court of Protection cases.
What is mental capacity?
Mental Capacity is the ability to make decisions. When a person is not able to, they are said to ‘lack capacity’ to make a decision.
Sometimes a person can have capacity to make smaller routine decisions, such as what to wear or eat, but not have the capacity to make bigger decisions, for example where to live or what medical treatment to receive. Someone’s capacity to make decisions can change over time because their state of mind may change.
A lack of mental capacity could be due to:
- A stroke or brain injury
- A learning disability
- Confusion or being unconscious
- Alcohol use
- A mental health problem
A person must be suffering from an ‘impairment’ or ‘disturbance of the mind’ to be assessed as lacking capacity to make a decision. This could be temporary or permanent.
If there is a dispute about your capacity to make a decision or about a family member’s capacity, please contact us.
What is a best interests decision?
When a person lacks capacity to make a decision, the decision can be made for that person. It must be made in their best interests.
The Mental Capacity Act 2005 sets out a checklist of factors to consider when deciding what is in a person’s best interests. It includes considering the persons past and present wishes and the views of anyone concerned for their welfare.
Sometimes there is a dispute about what is in a person’s best interests. If you need further advice on what the law says about best interests please contact us.
What is a Deprivation of Liberty Safeguards (DOLS) Authorisation?
A Deprivation of Liberty Safeguards (DOLS) authorisation is given when a person is in a hospital or care home and they are deprived of their liberty. Being deprived of your liberty means that you are under continuous supervision and control and you are not free to leave the place where you are staying.
When a person is under a DOLS authorisation, a Relevant Person’s Representative (RPR) will be appointed for them. The RPR’s role is to represent and support the person under the authorisation.
When someone is under a DOLS urgent or standard authorisation they can challenge the authorisation in the Court of Protection. The court will decide whether the authorisation should continue.
At Atkins & Palmer we often represent advocates or family members who are appointed as a Relevant Person’s Representative. If you are acting as a Relevant Person’s Representative and you think that an application should be made to the Court of Protection, please contact us.
Atkins & Palmer holds a legal aid contract and we can provide services under the legal aid scheme. We have to carry out an assessment of whether you qualify for legal aid. Our team has to look at the merits of your case. Additionally we sometimes have to assess your financial means. To see whether you may be eligible for legal aid you can check the Legal Aid Agency Civil Eligibility Calculator.
If you are not eligible for legal aid we can also provide services at affordable fixed fees or hourly rates. Whether it is a fixed fee or an hourly rate fee depends on the complexity of the case. We provide an initial free telephone consultation to discuss more about our services and fees.
Contact our mental capacity team:
0203 488 3994
Unit 19836, PO Box 6945, London, W1A 6US