Court of Protection Basics

The Court of Protection (CoP) is a superior court that has jurisdiction over all matters relating to the personal welfare and property and financial affairs of people lacking capacity. It operates under the Mental Capacity Act 2005 (MCA). Its main functions are:

• Making one-off decisions — For example, deciding whether it is in someone's best interests to move to a care home, have an operation, or be given a specific medical treatment, where there is dispute or uncertainty;
• Declarations about capacity — Formally determining whether a person has capacity in relation to a specific decision;
• Appointing deputies — Where there is no LPA and ongoing decision-making authority is needed, the court can appoint a deputy (see the Deputyship guide);
• Overseeing LPAs and deputies — Investigating concerns about attorneys or deputies acting improperly;
• Approving statutory wills and gifts — Making or authorising a will or significant gift on behalf of someone who lacks capacity to do so themselves.

An application to the Court of Protection is appropriate when:

• Someone lacks mental capacity and there is no LPA or EPA in place to deal with the matter;
• There is a dispute about whether someone has capacity;
• An attorney or deputy is suspected of acting improperly;
• A one-off serious decision needs to be made for someone who lacks capacity and there is disagreement about what is in their best interests;
• A statutory will needs to be made or approved.

The court is not for day-to-day decisions — health and social care professionals routinely make best-interests decisions without court involvement (under the MCA) for treatment and care decisions. The court is needed when there is a significant dispute, when the decision is of major consequence and requires judicial authorisation, or when an ongoing decision-making authority (deputyship) is needed.

Applying to the Court of Protection involves completing the relevant application forms (available from HM Courts and Tribunals Service), paying a court fee (though fee remission is available for those on low incomes), and serving the application on the relevant parties.

Court of Protection proceedings can be paper-based (for straightforward applications) or hearing-based (for contested or complex matters). Cases involving welfare issues are often more complex and may involve the Official Solicitor as litigation friend for the person lacking capacity.

Legal representation is advisable for most Court of Protection applications, particularly contested hearings. Many solicitors specialise in Court of Protection work. Legal Aid may be available for some cases, particularly those involving serious medical treatment decisions or safeguarding issues.