Court of Protection
Mental Capacity is necessary to make decisions which are legally enforceable. We specialise in helping to resolve problems resulting from mental incapacity. Our expertise covers the full range of issues, whether they be finance, welfare/care, or deprivation of liberty.
Finances:
We advise that a Lasting Power of Attorney be created which will head off the need to make an application to the Court of Protection. Without capacity, a deputy must be appointed to administer the individual’s finances to include authority to sell assets. Unfortunately, the court process can take time, which will be a problem if it is necessary to sell the house quickly. That is why experience is vital to complete the application forms containing details of the individual’s affairs and circumstances and providing information about the proposed deputy. A medical certificate confirming incapacity is necessary. Once appointed, the deputy works within the powers granted by the court and must make an annual account to the Office of the Public Guardian.
Not only is the procedure time consuming, but it can also be expensive as the fees for the court, let alone any other legal or administrative charges, can exceed £500.
Personal Welfare:
This can include some of the most profound issues a court will ever have to deal with such as whether invasive medical treatment should be given or withheld. These can be life or death decisions so good advice and guidance from those with a deep understanding of the medical, social and ethical issues can be of immense assistance. We at odonnells do not dabble in mental health as an add-on to advising on financial transactions. Our involvement in this area of law arises out of a long-standing and deep commitment.
Not all CoP applications involve such serious issues but even if it is only a question of choice of care home, or whether someone can go on holiday, a deep understanding of the workings of this unusual area of the law can save a good deal of worry, money and time.
Deprivation of Liberty:
The DOLS safeguards are contained in a quite extraordinarily complicated schedule of the Mental Capacity Act. The judge who heads the Court of Protection recently said that if three lawyers are asked what is meant by deprivation of liberty, there would be four different answers. Our information sheets contain detailed information about this developing area of law in which we have been closely involved.
If someone lacks mental capacity, decisions are taken on the basis of ‘best interests’. It must always be remembered that what others might regard as an unwise decision might not necessarily be one that the court or a deputy can countermand. The legislation is all about empowering those who lack capacity by using all appropriate means available to make their own decisions. Only where this has proved impossible should someone else decide what is in their ‘best interests’. The challenge for we professionals is to ensure that the individual’s position is protected against the well-meaning but potentially flawed opinions of others.
Do it yourself?
Of course, like any Court proceedings, the use of a solicitor is not compulsory. However, the complexity of legislation, regulations, guidance, forms and case law will trap the unprepared or the unskilled. Never has the warning about the ‘unknown unknowns’ been more true. It is impossible to prepare against what you do not know and case law is developing all the time in mental capacity so that it is difficult even for solicitors to keep up. Therefore, this is an area where we would caution against using a non-specialist solicitor, let alone not using a solicitor at all.
Why odonnells?
The senior partner has personal experience of mental disorder in his family and has been involved with MIND, the mental health charity, for over two decades. This commitment runs throughout our practice, which specialises in every aspect of mental health law. From detention in hospital under the Mental Health Act 1983, to advising community patients, Lasting Powers of Attorney, guardianship, and Court of Protection, we know most answers because we have dealt with them. Specialism allows us to keep up to date with the flood of rules, regulations and case law pouring out of Tribunals, the Court of Protection and the European Court. A judge recently expressed concern when a MHA patient was represented by different solicitors in MCA proceedings which led to loss of cohesion and information. We offer a complete, joined-up service.
Appointments:
We can see clients in the office, hospitals, care homes, or own homes.
Our Staff
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| Philippa Curran | Christine Makinson | Laura Wilson |
Information Sheets
| Title | Date |
| Cheshire West and Chester Council v P (2011) EWCA Civ. 1257 | 25/01/2012 |
| SoS Justice v RB (2011) Court of Appeal | 10/01/2012 |
| Cheshire West and Chester Council V P & M (2011) | 09/11/2011 |
| Statutory Referrals | 27/09/2011 |
| What amounts to a Deprivation of Liberty? | 19/06/2011 |
| Intervention on Medical Treatment | 06/06/2010 |
| Further Information | 27/04/2010 |
| Court of Protection Complaints | 27/04/2010 |