When is a Court of Protection Order Needed?


by Holly Webb, Paralegal in the Private Client Department

The Importance of LPAs

An important part of being fully prepared for later life is by making a Lasting Power of Attorney. This will nominate a trusted friend or family member who will make important decisions on your behalf in the eventuality that you no longer have the capacity to make these decisions yourself.

Before you make an LPA, you need to demonstrate that you have the capacity to do so, if you need to appoint an Attorney but are deemed to no longer have capacity, you will not be able to do so. Some people do find themselves in the position where they no longer have capacity and have not appointed anyone to make Health and Welfare decisions on their behalf.

What Can You Do Without an LPA

In these circumstances, the Mental Capacity Act 2005 does allow family members and other carers to make decisions relating to a person’s care and treatment. Family members and carers do not need permission from the Court to help someone to wash, dress or feed themselves. It is also permissible to buy shopping and necessary goods for them using their own money and arrange homecare, services and repairs or maintenance.

Those caring for a person who lacks capacity are also allowed to carry out diagnostic tests to identify an illness, give medication and arrange professional medical treatment. They are also allowed to arrange care in an emergency. There are limits to this, the person must be reasonably deemed to lack capacity to make the decision themselves and it is vitally important that any decisions made or actions taken are in that person’s best interests.

If the decision is about where the person is to permanently reside or if there is a disagreement over what is considered to be in the person’s best interests then an application will have to be made to the Court of Protection who will make a one-off decision on the matter.

The Court of Protection

As a rule, the Court of Protection is unlikely to appoint a Health and Welfare Deputy unless ongoing welfare decisions will need to be made. Deputies are more likely to be appointed in cases where a person suffers from a progressive illness or profound learning disabilities and will require a series of medical decisions to be made on their behalf over a period of time.

If the Court of Protection does appoint a deputy, there is no guarantee that they would have been the first choice of the person needing decisions made on their behalf. While you have the capacity to do so, it is very important to make a Lasting Power of Attorney to put you in control of who will manage your affairs in the event that you are no longer able to.

How Can We Help?

LPAs can be made for Health and Welfare and also for Property and Financial Affairs. The Private Client team at Fraser Dawbarns will be happy to assist you with making an LPA or with an application to the Court of Protection.

Read more about Holly Webb

Find out more about our Powers of Attorney Services

Read an article about the growing incapacity crisis by Kieren Cross

Read Harleen Hanson’s piece on the Court of Protection