The Court of Protection decides whether someone has the mental capacity to make their own decisions. The Court was created under the Mental Health Act 2005.

What does the Court of Protection do?

Suppose the Court of Protection decides that your vulnerable loved one lacks mental capacity and, therefore, the ability to make sound decisions for themselves. In that case, they will appoint a deputy to make financial or welfare decisions on their behalf.

The Court of Protection has various powers. These include the power to:

  • Decide whether a person has the mental capacity to make financial or welfare decisions for themselves.
  • Appoint a deputy or deputies to make decisions for a person on an ongoing basis.
  • Make decisions about disagreements that cannot be settled in any other way. This can be done by using an independent mental capacity advocate.
  • Permit a loved one to make a one-off decision for the person in question.
  • Handle emergency applications when a decision needs to be made urgently on a person’s behalf.
  • Make decisions relating to a lasting or enduring power of attorney, including considering any doubts or potential issues associated with their registration.
  • Make decisions regarding applications for statutory Wills or gifts.
  • Decide whether a person can be deprived of their liberty under the Mental Capacity Act.

When making these decisions and following the requirements, the Court must always act in the person’s best interests.

Who can apply to the Court of Protection?

Anybody can apply.

If you have a question that the Court has authority to decide (see above for the powers of the Court of Protection), you can apply. You do not need permission to do this if you are the person the Court will decide about and you are over 18. Alternatively, if you are under 18, your legal guardian can apply without permission. An attorney, deputy or anyone named in a Court order relating to the matter can also apply without needing permission.

Anyone unrelated to the matter, e.g. a family member, healthcare trust or local authority, can also apply, but they need permission from the Court to do so.

If somebody brings a matter to the Court of Protection on your behalf because you lack mental capacity, you should still be included. If you have the means to do so, you can hire a solicitor; if not, the Court will consider the extent to which you should be involved and may appoint a representative for you.

Can I appeal the Court of Protection’s decision?

If you want to appeal a decision made by the Court of Protection, you must apply to the Court of Appeal. In this case, you may need permission.

Challenging a decision will require advice and guidance from a solicitor specialising in Court of Protection matters. Your solicitor should help you confirm whether you will be likely to get legal aid for your challenge and how likely you will be to win your case.

If your solicitor believes you are unlikely to win your case, you should not go ahead with a legal challenge as the process could be expensive and stressful.

Court of Protection Solicitor

Beverley Morris & Co., based in Blackheath, London, has a team of specialist Court of Protection solicitors available to guide you through the various aspects of your matter.

Contact us today on 020 8852 4433 or email to speak with a member of our Court of Protection team. Alternatively, make an online enquiry.