Court of Protection applications
What do the Court do? The Court of Protection have one remit, that is to make decisions on behalf of people who lack capacity to make them for themselves. If they are found to have capacity on any particular issue, the Court lacks jurisdiction.
They make simple deputyship orders for people who lack capacity and did not make LPAs before they lost it or perhaps the person has always had an impairment. These are relatively straightforward applications and within the Court, might be considered by a senior administrator rather than a judge, as they are considered sufficiently straightforward.
So, what are the more complicated matters they will deal with? They make decisions that involve and an attorney or deputy that is considered “self-dealing”, which is when the person in charge of the money wants to purchase or sell an asset to themselves. It could also be about investing money in the attorney or deputy’s business, something where the transaction has a financial link to the deputy or attorney.
The Court also want to look at requests for gifting. There have been a number of cases recently following which the Court has tried to provide guidance on what is acceptable gifting and what isn’t, which helps with what needs to be reviewed by the Court as being something that is more than just basic modest gifting. The Court will grant orders for gifts more than just something very basic, but there needs to be a good reason to do so. The Court needs to be persuaded that it in the best interests of the person whose money it is, to give it away and is therefore not available to them for their own needs.
The Court will deal with fraud cases, where someone has used the money inappropriately and was way beyond their authority to use the money or they have simply stolen it. The Court will seek to recover the money for the person if they can and will also replace the attorney or deputy with someone more suitable to manage their affairs.
The other thing that they consider is disputes, which covers all kinds of things from financial to health decisions and some issues that cover both. This has arisen because two sides don’t agree about something and usually each of them thinks that they are right and that what they want is in the best interests of the person. The Court will hear both sides and make their ultimate judgement.
These applications that are more than just simple deputyship for finance can be difficult to do, they require lots of forms and the arguments have to be structured in a way that will make a difference to the Court. There is legislation that deals with people who lack capacity and the Court needs to be persuaded that this legislation is not sufficient to deal with the current situation and something different needs to happen. There is often a long delay between submission of the forms and the order being granted, so if there is a requirement for the case to be seen promptly, then this is another challenging aspect of these kinds of cases.