8. Court of Protection

The Court of Protection (CoP) makes decisions on financial or welfare matters for people who cannot make decisions at the time they need to be made, that is they lack mental capacity. Generally the Court makes decisions in disputed or complex cases.

1.1 Responsibilities

Its responsibilities include:

• deciding whether someone has the mental capacity to make a particular decision for themselves;
• appointing deputies to make ongoing decisions for people who lack mental capacity;
• giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity;
• handling urgent or emergency applications where a decision must be made on behalf of someone else without delay;
• making decisions about a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA) and considering any objections to registration;
• considering applications to make statutory wills or gifts;
• making decisions about when someone can be deprived of their liberty under the Mental Capacity Act.

It consists of a number of different departments, each one having a distinct role. It is administered by HM Courts and Tribunals Service. There are courts in London, Birmingham, Cardiff, Manchester, Newcastle and Preston.

1.2 Powers

The Court has the same powers, rights and privileges and authority as the High Court.

It either makes the decision itself or appoints a deputy to make it.

It must make its own decisions where there is no LPA / EPA and a financial decision must be made.

It must make its own decision if it is necessary to make a will or amend an existing will.

It is a Superior Court of Record and is able to set precedents that must be followed in future cases.

See Court Appointed Deputies.

See also Report a concern about an attorney or deputy (gov.uk).

The donor can object to a LPA/EPA (via a form).

An attorney or person to be notified can also make a factual objection (see Section 3.1 Factual objections) or an objection on prescribed grounds (see Section 3.2 Prescribed objections).

Another person can object.

3.1 Factual objections

Factual objections include:

• the donor or an attorney has died;
• the donor and an attorney were married / had a civil partnership but have divorced / ended partnership;
• an attorney does not have the mental capacity to be an attorney;
• an attorney has chosen to stop acting (sometimes called ‘disclaiming their appointment’);
• the donor or an attorney are bankrupt, interim bankrupt or subject to a Debt Relief Order (property and financial affairs attorneys only).

3.2 Prescribed objections

• the LPA is not legally correct;
• the attorney does not believe a donor had mental capacity to make a LPA;
• the donor cancelled their LPA when they regained capacity;
• there was fraud, for example someone faked the donor’s signature;
• the donor was pressured to make a LPA;
• an attorney is acting against the donor’s best interests;
• The attorney will need to provide evidence to support such objections.

4.1 The Administration Unit

The Administration Unit is involved in:

• processing applications;
• handling pre-hearing enquiries;
• dealing with attended hearings.

4.2 Timescales

On receiving an application they will make contact within 25 working days. Where no hearing is required a direction will be given within 21 weeks. When a hearing is required, a hearing will be set within 15 weeks.

Timescales for other issues are usually:

• a response to letters, faxes, emails within five working days;
• following a request for a form or printed advice they will be posted within one working day;
• following receipt of a complaint, the complainant will have a full response within 15 working days.

LPAs will be registered within five days of the investigation stage being completed.

5.1 Serious cases

Practitioners must apply to the court if the following decisions are required:

• withholding or withdrawing artificial nutrition and hydration to someone in a permanent vegetative state;
• donation of an organ or bone marrow;
• non therapeutic sterilisation;
• termination of pregnancy;
• dispute about serious medical treatment and there is lack of agreement amongst parties.

5.2 Serious medical treatment

Serious medical treatment includes:

• treatment which involves the use of a degree of force or restraint;
• experimental treatment;
• ethical dilemmas;
• treatments which may cause serious or prolonged pain;
• treatments which have major consequences on future life choices.

5.3 Decision making

The President of the CoP will decide in cases of:

• withholding or withdrawing artificial nutrition and hydration to someone in a permanent vegetative state;
• ethical dilemmas in an experimental procedure or one not previously heard by a court.

The President of the Family Division of the Chancellor of the High Court will decide in cases of serious medical treatment.

5.4 Other issues

The CoP can be involved in disputed or complex cases such as:

• where a person should live;
• the level of contact with certain people;
• prohibiting contact with a certain person;
• control or management of property;
• sale, exchange, gift, disposal of property;
• purchasing property;
• continuing a contract;
• discharge of debts;
• making a will;
• conducting legal proceedings on someone’s behalf;
• appointing a deputy;
• withdrawing money from a bank account in the absence of a second signatory or LPA.

Although an application regarding such decisions may not be as urgent as one requiring urgent medical treatment for example, it may well constitute an urgent application. For example, in a case in 2014, the judge criticised the council for waiting for 14 days before making an application to the court of protection to restrict a person’s contact with others (Milton Keynes Council v RR (2014) EWCOP B19).

Application is via forms available on the CoP webpages (gov.uk).

If the Court feels the issue is not complicated enough they will refer the case back to professionals for mediation.

Cases are held in private; only invited people can attend.

6.1 Urgent and emergency applications

You can apply to the Court of Protection to get an urgent or emergency court order in certain circumstances, for example when someone’s life or welfare is at risk and a decision has to be made without delay. This includes providing treatment for a serious medical condition, preventing someone being removed from the place where they live, executing an urgent financial transaction.

Healthcare staff can give life sustaining treatment whilst the Court comes to decision, as per the statutory defence (MCA s4b) of performing a vital act whilst awaiting the decision.

Staff should check for the latest guidance and telephone contact numbers by visiting  Make an urgent or emergency application to the Court of Protection.

6.2 Fast track procedure

Certain cases can be fast tracked; within 5-10 days. These include:

• property sale or purchase where there is immediate risk of losing a buyer;
• appointment of new trustee to sell a property where there is immediate risk of losing a buyer;
• investment of money where there is a deadline approaching;
• the release of the person’s funds are required to pay for arrears of care home fees or someone being discharged from hospital needs own home adaptations.

Enquires can be made on 0300 456 4600.

• Single fee for all applications £400;
• Oral Hearing fee £500;
• Appeal fee £400;
• Copy of a document fee £5;
• • LPA registration fee £82.

7.1 Fee exemptions and remissions

Application to search the EPA / LPA register is now free. A request can be made online via Find out if someone has an attorney or deputy acting for them.

The exemptions and remissions are based on receipt of certain means tested benefits and the applicant’s gross income. These can change from time to time and practitioners should check the latest fees guidance: Power of Attorney Fees.