Court of Protection disputes and applications

The Court of Protection is a specialist court in England and Wales that makes decisions about the property, financial affairs, personal welfare and healthcare of people who lack the mental capacity to make the decisions themselves. The Court of Protection can also appoint people, known as Deputies, to make decisions on behalf of people who lack capacity to make those decisions independently.

What is a Deputy and can they be removed?

When a person lacks capacity to make decisions regarding their finances or welfare, a Deputy can be appointed to make these decisions on their behalf. A Deputy would be appointed if the person that lacks capacity (“the protected party”) has not established a lasting power of attorney. 

A Deputy can be a close friend or relative of the protected party. However, if there is no one willing and able to take this role, the court can appoint a specialist, professional Deputy. 

A Deputy can step down, be replaced or be removed. If an existing Deputy wishes to step down, they must make an application to the court explaining why they are no longer able to act. Where possible, the Deputy should put forward a replacement. 

A Deputy can be replaced if the protected party or their family wish to replaces them. This may be because the relationship between the protected party and the Deputy has broken down or perhaps the cost of the professional Deputy has become too much. 

A Protected Party may feel that they no longer need the assistance of a Deputy and may wish to handle their own affairs. The Court will need to see evidence that the Protected Party is now capable of managing their own finances and/or welfare before making a decision to remove a Deputy.

What is a statutory will?

When a person lacks capacity to make a will themselves, the Court of Protection can put in place a will, known as a Statutory Will. The process involves making an application to the Court of Protection, informing the family members and interested parties of the application and there may be a hearing. 

If the situation is time sensitive, for example, where there are concerns about a person’s health, you can make an urgent application. You will have to provide evidence of the condition and why the application is urgent, as well as reasons why an application was not made sooner. 

We recommend seeking specialist advice if you are considering making a statutory will for someone who lacks capacity to ensure that your application complies with the necessary court requirements and contains the required supporting documentation to be considered by the court.