Whether you would like to contest a decision in the Court of Protection, or you are a deputy or attorney whose actions are being challenged, our guide to Court of Protection disputes covers the basics to help you get started.
What is a Court of Protection dispute?
The Court of Protection is there to safeguard the interests of individuals who, whether due to injury, illness or age, lack capacity to manage their own affairs. When a dispute arises in this area, the Court of Protection has the power to intervene.
Common disputes relate to:
- disputes over the vulnerable person’s mental capacity and whether their affairs should still be under the jurisdiction of the Court of Protection;
- disputes over an appointment of the deputy or attorney;
- challenging the actions of or gifts made by the deputy or attorney;
- challenging a personal welfare decision;
- disputes over whether the deputy or attorney is acting in the best interests of the individual; and
- disputes over a statutory will.
Disputes over mental capacity
Lack of mental capacity can be caused by illness, injury or age. An individual is deemed to be incapable of making a decision if they cannot understand the information needed to make it, cannot retain the information needed to make it, cannot evaluate the information needed to make it or cannot communicate, even with support. There is not a specific requirement for a professional assessment to certify lack of mental capacity; it can be determined by someone providing care for that person. However, if there is a dispute regarding this determination, a professional opinion from an expert capacity assessor should be sought before instigating Court proceedings.
Disputes over an appointment of deputy or attorney
A power of attorney must be registered before it comes into force. Once in force, it is possible to challenge it. Common reasons for contesting such attorney appointments include:
- not feeling that the attorney is acting / will act in the vulnerable person’s best interests, or
- not believing that the vulnerable person had capacity to execute the power of attorney in the first place.
A deputy may have been appointed to manage the affairs of a vulnerable person where no power of attorney exists. Again, you may wish to challenge this appointment if you believe the deputy to be unsuitable or untrustworthy.
Where attorneys or deputies fail to act in the vulnerable person’s best interests, and there is evidence of such misconduct, the Court of Protection can revoke their appointment.
In this complex area, specialist legal advice should always be sought in the event of challenging the appointment of an attorney or deputy in the Court of Protection.
Challenging gifts made by the deputy or attorney
It is permissible for attorneys and deputies to make gifts on behalf of the vulnerable person. Where such gifts are substantial and not made on customary occasions, such as birthdays or Christmas, approval of the Court of Protection will, however, be required.
If you feel that an attorney or deputy is improperly gifting the funds of a loved one, or using the funds for their own benefit or inappropriately, it is possible to make an application to the Court requesting that the funds be reimbursed and/or that the attorney or deputy be removed.
Challenging a personal welfare decision
A dispute over a personal welfare decision may relate to such issues as what medical treatment should be given or whether the person should reside in a care home, etc. With regards to such decisions, it is often not necessary for the Court of Protection to be involved. However, where a dispute arises over personal welfare decisions, the Court of Protection will look beyond the opinions and preferences of friends and family and seek to determine on the evidence what is in the best interests of the vulnerable person.
Disputes over whether a deputy or attorney acting in ‘best interests’
Determining what is in the best interests of the vulnerable person is often a matter of weighing up the current and past wishes of the individual, the feelings of their loved ones who are involved in their life and care, and any other relevant factors. There may well often be differences of opinion about what is in the best interests of a person who lacks capacity, leading to disputes being referred to the Court of Protection.
Disputes over a statutory will
Where an applicant asks the Court of Protection to make a statutory will for a person who lacks mental capacity, beneficiaries or potential beneficiaries should be notified. If they are dissatisfied with its contents, they may be able to object and take part in the proceedings. In such cases it is important to seek legal advice on how best to proceed as soon as possible.
Can I ask the Court to reconsider a ruling?
Anyone affected by a ruling that the Court of Protection makes without a hearing can apply for the order to be reconsidered by the Court, as long as they do so within 21 days of it being granted. It is important that the Court be able to make certain decisions quickly and efficiently, however, it is also important that individuals who feel wronged by such decisions be given the opportunity to have the Court reconsider. In order to instigate this process, application forms and witness statements must be compiled and submitted to the Court. Again, expert legal advice is highly recommended.
What about legal costs in the Court of Protection?
The general rules are as follows:
| Proceedings | Costs |
|---|---|
| Proceedings relating to property and financial matters | The legal costs of all parties in the proceedings are paid out of the vulnerable person’s assets. |
| Proceedings relating to health and welfare matters | Each party will pay their own costs. |
| Proceedings relating to property and financial, and health and welfare matters | Costs will be assigned to the respective issues, and will then be distributed in line with the above rules. |
However, the Court of Protection is empowered to deviate from these general rules, for example where they believe a party has unreasonably pursued or contested a particular issue.