Court of Protection in Emergency Situations - When and how to obtain it

Accidents can happen to anyone at any time, and sometimes, these accidents can result in individuals losing the ability to make their own decisions. In such cases, the Court of Protection steps in to protect the interests of these vulnerable individuals and make important legal decisions on their behalf. In this article, we will explore the role of the Court of Protection, the appointment of deputies, the concept of mental capacity, and the process of making legal decisions in the aftermath of an accident.

What is the Court of Protection?

When accidents or circumstances lead to individuals losing the mental capacity to make their own decisions, the Court of Protection comes into play. The Court of Protection is a specialist court in England and Wales dedicated to safeguarding the interests of vulnerable individuals who cannot make decisions about their finances, compensation, health, and welfare. It was established under the Mental Capacity Act 2005 and has the authority to make important decisions for these protected individuals.

The scope of the Court of Protection's powers is extensive and covers various aspects of decision-making and protection of vulnerable individuals. Some of the key powers of the Court of Protection include:

• Assessing an individual's mental capacity to make decisions
• Appointing Deputies to act on behalf of protected persons
• Granting permission for one-off decisions on behalf of protected persons
• Making decisions regarding statutory wills or gifts
• Determining cases involving deprivation of liberty under the Mental Capacity Act 2005

Mental Capacity and its Implications

Mental capacity refers to an individual's ability to make sound decisions about their everyday life and important life-changing matters while understanding the implications of those decisions at the time. According to the Mental Capacity Act 2005, a person lacks capacity if they cannot make decisions "because of an impairment of, or a disturbance in the functioning of, the mind or brain." This means that if a person cannot understand information, use it to reach a decision or communicate their decision, they are considered to lack mental capacity.

There are various reasons why someone may lack mental capacity, including old age and dementia, extensive learning difficulties, serious illness, and personal injuries. Serious injuries, especially those affecting the head or brain, can lead to a loss of mental capacity. In such cases, the Court of Protection may appoint a Deputy to make decisions on behalf of the individual during legal proceedings or following a compensation payout.

The Appointment of Deputies

A Deputy is an individual formally appointed by the Court of Protection to make decisions on behalf of a protected person. They act as the legal representative of the protected person and carry out their responsibilities following the Court's Deputyship Order and the Mental Capacity Act. Deputies can be close relatives, such as spouses or parents, or professionals, such as solicitors. The role of a Deputy is crucial in managing the financial and welfare affairs of the protected person.

There are two main types of Deputies: Property and Financial Deputies and Health and Welfare Deputies. Property and Financial Deputies handle matters related to financial decisions, selling or buying property, claiming benefits, and ensuring the protected person's financial needs are met. Health and Welfare Deputies make decisions about where the person lives, their daily care, medical treatment, and care arrangements. The Court of Protection specifies the scope of a Deputy's authority in the Deputyship Order.

Decision-Making Process in the Court of Protection

One of the primary functions of the Court of Protection is to determine whether an individual has the mental capacity to make specific decisions. This assessment is crucial in establishing whether a person can make decisions independently or requires the assistance of a Deputy. The Court follows the guidelines in the Mental Capacity Act 2005 to assess an individual's capacity and make decisions in their best interests.

Making Statutory Wills and Gifts

In cases where an individual lacks the mental capacity to manage their finances and has not made a Will, the Court of Protection can make a Will on their behalf. This is known as a statutory Will, ensuring the individual's best interests are considered. To ensure the proposed statutory Will is appropriate, a draft is submitted to the Court for approval, taking into account the protected person's circumstances and wishes.

Deprivation of Liberty under the Mental Capacity Act 2005

The Court of Protection has the authority to make decisions regarding the deprivation of liberty. If it is deemed necessary to deprive an individual of their liberty for their safety or the safety of others, an application must be made to the Court of Protection. The Court carefully assesses the circumstances and determines whether the deprivation of liberty is in the best interests of the individual.

The Importance of Lasting Power of Attorney

To avoid the need for the Court of Protection's intervention in the event of losing mental capacity, individuals can plan ahead by setting up a Lasting Power of Attorney (LPA). An LPA allows individuals to choose someone they trust to make decisions on their behalf if they cannot do so in the future. By appointing an attorney through an LPA, individuals have control over who will make decisions and can ensure their best interests are protected.

Having a Lasting Power of Attorney provides several benefits, including peace of mind and knowing that someone chosen by the individual will make decisions. It also avoids the need for the Court of Protection's involvement and streamlines the decision-making process. However, it is essential to note that LPAs have limitations, such as the need for mental capacity at the time of creation and the potential for abuse if the appointed attorney does not act in the individual's best interests.

The Court of Protection and Compensation Claims

In cases where an accident results in a person losing mental capacity, and they wish to pursue a personal injury claim, the Court of Protection becomes involved. The Court may appoint a Deputy to act on behalf of the injured person during the legal proceedings or after the compensation has been awarded. The Deputy becomes the point of contact for the personal injury solicitor and ensures that the compensation is managed appropriately in the best interests of the protected person.

Deputies play a crucial role in compensation claims by ensuring that the protected person's financial and welfare needs are met. They may assist in securing compensation on behalf of the protected person and make decisions regarding using the funds. 

Applying for Court of Protection Assistance

If an individual requires assistance from the Court of Protection, various forms need to be completed to make an application. It is essential to provide all relevant information and supporting documents to support the application and ensure that the Court has a comprehensive understanding of the situation.

Expert Advice and Support

Navigating the Court of Protection process and understanding the legal implications can be complex. It is essential to seek legal guidance and support from experienced professionals specialising in Court of Protection matters. 

For further help and advice, please get in touch with Karon Walton, Legal Executive and Court of Protection expert, on 013 2922 2077 or email karonwalton@warnergoodman.co.uk.