The Court of Protection – an overview

27th February 2025

The Court of Protection makes decisions on the financial and welfare matters of people lacking capacity and are unable to make decisions themselves.

The Mental Capacity Act 2005 (MCA) established the Court of Protection. The MCA outlines how capacity should always be assumed unless it can be proved otherwise and how all decisions should be in the best interests of the vulnerable person lacking capacity.

The Court of Protection can:

  • Decide whether a person has capacity to make a particular decision for themselves
  • Make declarations, decisions or an order on financial or welfare matters of those who lack capacity
  • Appoint deputies to make those decisions
  • Remove deputies or attorneys who fail to carry out their duties
  • Hear cases concerning objections to register a Lasting Power of Attorney or an Enduring Power of Attorney

Applications to the Court of Protection

Applying to the Court of Protection should be a last resort when considering welfare decisions. Instead, there should be efforts to resolve matters before applying to court.

Applications concerning welfare include making decisions as to where the vulnerable person should live, treatment received or restrictions on contact and visits.

Applications can also be made to the Court to appoint a deputy to manage property and financial affairs such as accessing the person’s bank account or selling a property.

Applications will either be contested or non-contested applications. Non-contested hearings such as deputy appointments are dealt with on paper with some applications now online, without the need for a hearing. Contested hearings will arise when someone objects to an application and will usually be subject to a hearing.

Section 4 of the MCA

The Court of Protection will always consider Section 4 when making decisions. It outlines a best interest checklist which requires consideration before acting or making decisions for people who lack capacity. It includes considering:

  • Likelihood of regaining capacity
  • Past and present wishes and feelings of the vulnerable person
  • Beliefs and values that would likely influence the vulnerable person’s decision
  • Considering all relevant circumstances

Court costs

The general rule is that financial affairs costs are paid by the person who lacks capacity or to their estate. By contrast, in proceedings concerning health and welfare, the parties are responsible for their own costs.

However, the court can depart from this general rule. In London Borough of Lambeth v MCS & Anor [2018] EWCOP 20 the Judge ruled the costs should be paid by applicant because of their poor conduct.

Duties

It is important to note that court appointed deputies have various responsibilities and must abide by Office of the Public Guardian (OPG) Deputy Guidance Standards. The role of OPG is to supervise deputies.

Deputy responsibilities include:

  • Meeting the obligations set out in the deputyship order and not exceeding authority
  • Completing deputyship report on an annual basis
  • Ensuring OPG supervision fees are paid on time

Some of the standards differentiate depending on whether you are a Professional Deputy, Lay Deputy or Public Authority Deputy. The OPG expects Public Authorities and Professional Deputies to have a higher level of technical knowledge and expertise compared to Lay Deputies.

It is important to note that if deputies do not fulfil their duties the Court of Protection could discharge them as a deputy. This is seen in the recent case of AECO, Re [2025] EWCOP 5 whereby the deputy was discharged for reasons including financial mismanagement and failure to cooperate with the Public Guardian.

Summary

The Court of Protection is vital in protecting vulnerable people who lack capacity and ensuring decisions are made in their best interests.

At Blake Morgan, we have a specialist team who advise on capacity issues and Court of Protection applications including disputes that arise, to support vulnerable people and their families when they need it the most.

If you need legal advice on Mental Capacity and Court of Protection matters

Speak to one of our specialist lawyers

Arrange a call

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