A Court of Protection case study

Litigation in the Court of Protection is a highly specialist field and one which is often misunderstood. To demystify this area of the law a little Wingwai Tam – Solicitor in Blanchards Bailey’s Litigation & Disputes Team - shares this Court of Protection case study.

The Court of Protection makes decisions about the property and financial affairs and the health and welfare of people who do not have the mental capacity to make those decisions themselves, often due to dementia or brain injury but mental capacity can be reduced for many reasons.

In this case we were instructed by the son of an elderly lady (“Mrs P”) who had lost capacity. Mrs P needed someone to step into her shoes to ensure her care fees were paid amongst other important financial decisions. Unfortunately, she had never appointed anyone to help her with such decisions by making a Lasting Power of Attorney, so the only option was for someone to apply to the Court of Protection to be her deputy. A deputy has the authority of the Court to make certain decisions on behalf of someone who lacks capacity.

Our specialist Private Client Team proceeded to issue an application for our client to be appointed as Mrs P’s deputy. Part of the process required our team to notify certain persons involved with Mrs P about the application, including our client’s sisters and Mrs P’s social worker. Having completed this step, our client was pleased that his mother’s social worker supported the plan. However, two of his sisters objected with spurious claims attesting to his alleged unsuitability to act as deputy, suggesting that an independent professional deputy such a solicitor should be appointed instead. Admittedly, sometimes a professional deputy is appropriate when there is no one else suitable to act and there are adequate funds available to pay the ongoing professional fees. Mrs P, however, had limited funds which she needed, in the main, to pay her care home fees. The appointment of a professional, when a suitable family member is willing to act, would not have been in her best interests therefore.

Our expert team adduced evidence to show the Court that the sisters’ allegations were false, but they have refused to withdraw their objections. We now await the Court’s decision at a final hearing. Our client has a strong case, and we are anticipating that he will successfully be appointed deputy, but the time consuming and costly legal process could have been avoided if Mrs P had made a Lasting Power of Attorney.

This case not only highlights our teams expertise in Court of Protection litigation, but also the importance of putting a Lasting Power of Attorney in place to avoid the need for a deputyship application later down the line, and loved ones having to be involved in litigation like this.

Our team of Private Client lawyers can advise you about making a Lasting Power of Attorney, or a deputyship application if it is too late. Although we always hope that a dispute will not arise, but if it does, our Litigation Team is fully equipped to support you through the process.