The Court of Protection is used in England and Wales to have jurisdiction over the financial affairs and wellbeing of anyone who lacks capacity. The Court of Protection was introduced when the Mental Capacity Act was brought into statute in 2005.
The Court of Protection’s remit encompasses a large number of issues that are faced by individuals who lack capacity and their carers and family members. Where an individual has not put a Lasting Power of Attorney (LPA) in place and they lack capacity, their proposed deputy will have to apply to the Court of Protection to seek permission to handle their affairs, both financial and with regard to decisions about their care.
In addition, the Court of Protection is there to deal with any issues that arise with the people who are given permission to act for people who lack capacity or where there are serious situations that arise for those individuals and their deputies could not be expected to make such decisions.
In one case, the Court of Protection ruled that although two sisters were given LPA powers by their mother, they were unable to act in her best interests as they could not communicate effectively and were at odds with each other, leaving them unable to act in her best interests because of their hostility towards each other.
In another landmark ruling, the Court of Protection allowed a woman to be sterilised after her sixth child. Her IQ was 70 and the judge ruled that another birth would be ‘life threatening for both her and her child’. In this case the woman, who has no contact with any of her six children, gave birth to two of her children at home in unhygienic conditions and during another of her pregnancies suggested that she had become pregnant from a tablet she purchased from a health food shop. This judgment proved controversial but remains unchallenged.
The Court of Protection should be a last resort though, as it can be a lengthy and costly process and the court may appoint less powers than those given in an LPA, so thought should be given to this option at the earliest opportunity.
This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitors before decisions are made and before you embark on a certain course of action.
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