The Court of Protection – expelling the myths

Year Published: 2013

A recent article in the Mail Online “exposing” the apparently secret court that is taking control of people’s assets could not be more inaccurate. Read the full article here.

The Court of Protection in some form has been around for decades (and not created by Labour in 2007, as was reported) and its purpose is to protect the most vulnerable members of society.

The article inaccurately states that the court “takes control” of a person’s assets when they “suffer sudden mental impairment”, which conjures up images of shady looking Court officials lurking in hospital corridors waiting to find their next mentally incapacitated victim! The reality is very different.

Power of Attorney

If a person hasn’t made a ‘Power of Attorney’ and they suffer a mental impairment and can no longer make decisions for themselves, then someone else needs to be appointed to deal with that person’s affairs. Common scenarios where this might arise would be in the case of someone who suffers a brain injury following an accident, or someone who suffers a stroke and does not recover. In those cases, if the person hasn’t made a power of attorney then there is no-one with the legal authority to make decisions on behalf of that person.

From a practical point of view, this makes life very difficult for the person and their family. They will have difficulty accessing the person’s bank account to make sure all the bills are paid, there may be disputes about who can give instructions about where money should be invested and who is responsible for deciding where that person should live or be cared for?

This is where the Court of Protection steps in. The court will appoint a deputy to make those decisions on behalf of the incapacitated person. However, in most cases the court will only makes such an appointment when someone has actually applied to take on the role. The judge will examine all of the facts before it makes an appointment based on what is felt to be in the best interests of that particular client.

The court isn’t something that should be feared – and scaremongering of the type in this article should be ignored. Although the court undoubtedly has its fair share of administrative issues and delays, on the whole it is extremely effective in what it does.

If you do need advice on issues relating to the Court of Protection, please contact the Court of Protection team on 01625 442148.

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