The Court of Protection is the branch of the Court which deals with the affairs of people who lack the capacity to make decisions for themselves. Such people are usually referred to as the patient. Under the Mental Capacity Act 2005, an Attorney or Deputy can deal with the day to day decisions for the patient. However, certain decisions can only be made by the Court.
There are sometimes situations where disputes arise relating to powers of attorney or the Court of Protection, which can lead to Court hearings:
You may have recently been served with a notice that an attorney for a loved one is trying to register the enduring power of attorney (EPA) or lasting powers of attorney (LPA) with the Court. You may wish to dispute this as you consider that power is being granted to the wrong person or the patient did not have the necessary capacity to make the power of attorney in the first place.
You may be aware that an attorney is already acting under a registered EPA or LPA but you have doubts as to the actions they are taking. You may also be an Attorney who is being challenged by other family members.
You may be unhappy with the proposed appointment of a Deputy or that a Deputy is not acting in the person’s best interests.
Alternatively, you may be a Deputy who is facing a challenge to your conduct.
It is important that you seek specialist legal advice before responding to an objection. The general rule with costs in the Court of Protection is that the objector’s costs will be paid from the estate of the patient. However, this only applies if you act reasonably at all times, and if the Court thinks otherwise, you could face having to pay yours, and your opponent’s costs, yourself.
If you do decide to object to the registration of an EPA or LPA and/or the actions of an attorney or deputy, you will need to comply with the formalities of the Court of Protection in lodging your application. This can be quite complex and it would be our advice that you use a solicitor to do this.
If you are an attorney, you may have been contacted by the Court of Protection in relation to an objection to your appointment, or to the way that you are handling the estate. Under these circumstances, it is crucial that you take legal advice as soon as possible and almost certainly then obtain legal assistance to defend any action against you, and to justify your conduct so far.
Our Consumer Litigation department has a dedicated team with experience of contested Court of Protection matters. You may also be entitled to Legal Aid, depending on whether you are financially eligible. Call us on 0845 144 1441 to speak to someone about your case, and see whether you are entitled to Legal Aid.
If you require general advice about Lasting Powers of Attorney, our probate department can assist you with this.
