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Court of Protection solicitors

Mental capacity COP overview - intro

Our team of specialist Court of Protection solicitors advise on all aspects of making decisions regarding the financial, health and welfare-related matters of individuals who are unable to make these decisions themselves due to mental incapacity and can provide representation in court proceedings. In all types of Court of Protection cases, decisions must be made in accordance with the Mental Capacity Act 2005, which outlines statutory principles and factors for decision-making. The paramount consideration is the best interests of the individual involved.

We often act for vulnerable adults with disabilities or family members in Court of Protection proceedings and can help with bringing or responding to a Court of Protection application. We have extensive experience of providing advice and representation in respect of mental capacity disputes and best interests decisions, including welfare decisions relating to residence, care, contact, and medical treatment. We work to ensure that decisions are made in the person’s best interests and in accordance with the relevant legislation and guidance.

Our welfare team is able to assist with deprivation of liberty issues, including challenges pursuant to s21A Mental Capacity Act 2005 where an individual is objecting to the deprivation of their liberty in a care home or hospital or wishes to challenge their care arrangements or restrictions on their liberty. This includes advising and taking instructions from Independent Mental Capacity Advocates.

To discuss your situation with our specialist solicitors call us on 01616 966 229 or complete our online enquiry form and we will contact you directly.

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Non-contentious Court of Protection

We have a team of non-contentious COP solicitors with expertise in making applications for Lasting Powers of Attorney (LPA) allowing individuals to appoint someone they trust to make decisions on their behalf if they become incapable of doing so in the future.

LPAs can cover property and financial affairs, as well as health and welfare matters.

We are frequently instructed to act on deputyship matters. As solicitors we can be appointed as professional deputies or we can advise the person likely to look after the mentally incapacitated person's affairs, including in respect of all aspects of the Court of Protection. In this role we assist with the finances and property of individuals who lack the mental capacity to manage their finances and assets.

Our Court of Protection team also has expertise in contested property and affairs cases, including applications by the Office of the Public Guardian to remove an attorney or deputy.

The benefits of seeking legal advice and representation in this area cannot be underestimated; the law is complex and changes from one week to the next.

Our Court of Protection solicitors have extensive expertise and knowledge in every aspect of this complex area of law, call us to discuss your situation on 01616 966 229 or complete our online enquiry form.

    What is the Court of Protection?

    The Court of Protection is a specialist court and is responsible for safeguarding the rights of those who have been assessed to lack mental capacity to make a particular decision for themselves.

    Sometimes, a person cannot make big decisions affecting their life for a number of reasons. A person may, for example, have a diagnosis of dementia or Alzheimer’s disease, have a learning disability, a brain injury or other medical condition. The condition might affect their ability to understand their situation or make a decision.

    It is important to remember that the existence of an illness or condition does not in itself mean that a person may lack capacity and an assessment by a professional is required to determine this. The law around whether a person has capacity is complex and it is therefore important that specialist legal advice is sought if this disputed.

    Our Court of Protection experience

    Our team of Court of Protection solicitors has extensive experience in dealing with these issues. Our experience includes:

    • Advising on whether a mental capacity assessment has been done properly and complies with the law
    • Challenges to a mental capacity assessment, including instructing psychologists and psychiatrists to undertake independent capacity assessments and using this evidence to successfully argue that a person has mental capacity to make a decision (despite their diagnosis or outcome of previous assessments)
    • Dealing with cases where a person has regained capacity to make decisions, for example, after a period of rehabilitation
    • Making applications to the Court of Protection in relation to a wide range of disputes, including:
      • To challenge capacity evidence
      • On behalf of family members, to contest that a decision made by a social worker or doctor is in a person’s best interests
      • To challenge a deprivation of liberty safeguards authorisation
    • Responding to applications in the Court of Protection on behalf of family members, for example drafting witness statements for the court, position statements and representation at court where there is a disagreement
    • Disagreements in relation to where a person should live, including whether they need to move to residential care or can stay in their own home, including challenging social work assessments and decisions about the amount of care a person needs
    • Cases involving vulnerable adults that have been assessed to have mental capacity to make one decision, but not in relation to another
    • Disagreements about whether a disabled adult should adhere to and follow religious practices, such as fasting and hair removal
    • Cases relating to termination of pregnancy and sterilisation of a disabled adult
    • Cases involving a complex overlap with mental health law, where a person has previously been sectioned and subject to both a community treatment order and deprivation of their liberty following discharge
    • We can assist the families and parents of those who have suffered medical negligence by making  applications to the Court of Protection to become a receiver
    • Acting as independent professional receiver for mentally incapacitated persons
    • Assisting non-professional receivers in their role and obligations to the court 
    • Advice and assistance with annual accounts required by the Court of Protection

    How can my Court of Protection case be funded?

    Stephensons are able to offer legal aid in some cases in making or responding to a Court of Protection application, or to simply provide advice in respect of the best interests process. This is public funding from the government, and means that you may not have to pay anything for us to help you.

    Legal aid is available to people deprived of their liberty in care homes and hospitals where the person wants to challenge this- regardless of the amount of their savings. It is also available in other cases, subject to eligibility criteria (including the merits of your case and assessment of your finances).

    If legal aid is not available to you, because your case does not qualify for public funding or your savings or income are too high, there are other options available to fund your case.

    We offer fixed fee initial consultations with specialist Court of Protection solicitors, to enable you to discuss your concerns for a small fee, before any action is taken to determine the best course of action. During this initial discussion, a solicitor can advise you on the steps that need to be taken to resolve the issue and the likely cost of the case.

    We also offer fixed fee packages throughout a case, so that clients have complete clarity on how much each stage of the case is going to cost.

    In some cases, due to the complexity or unpredictability of the case, it may be more appropriate to instruct us on an hourly rate basis, which will be a competitive rate with regular costs updates throughout the life of the case.

    It is important that you seek specialist advice before making or responding to Court of Protection applications. Any application or response needs to be carefully considered in order to protect your position. If an application has already been made to the Court of Protection or you want advice about making an application yourself, then we can advise you on the way best forward. For a confidential, no-obligation discussion regarding your case, contact our specialists on 01616 966 229 or complete our online enquiry form and a member of the team will contact you directly. 

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