There are many reasons why a person may be unable to manage their own affairs, such as injury following an accident, the onset of dementia, or a mental health disorder. The Court of Protection (COP) is a specialist court which deals with all issues relating to people who lack the capacity to make decisions for themselves. The Court is guided by the Mental Capacity Act 2005 and is duty bound to act in the best interests of the patient at all times. Family members who feel that a relative is no longer capable of making decisions in relation to their own welfare can make a Court of Protection application. The Court of Protection will then appoint a Deputy, often a relative but in some circumstances an appointed professional, such as a solicitor, to act on the individual’s behalf. A Court of Protection Order gives the Deputy the authority to deal with the affairs of the mentally incapacitated person.

Despite the Court being set up to protect these vulnerable individuals, its function has come into question recently in the media. In the case of A Local Authority v H [2012] EWHC 49 (COP), the Court had to decide on very personal matters; which resulted in an order preventing the lady from having sex. Although the Order was made in a protective capacity (there was evidence to suggest the lady was not in a position to give informed consent or understand the implications of partaking in sexual relations), by making it, the COP has effectively prevented the individual from ever being married, as she would not be able to consummate the union, an intervention which is arguably a step too far.

This is one in a series of cases where the Court have intervened in matters pertaining to highly vulnerable adults with a low IQ, and orders have been made pertaining to their personal lives.

In addition, the media has recently highlighted considerable imperfections in the system. For example, the Court can insist that large sums of money are placed within an account that is run by the Court itself, taking freedom away from the Deputy and not always providing the most fruitful investment.  Further, it may then be necessary to apply to the Court for release of the monies that are held; the cost of the application and the length of time this process takes can be considerable.

One way to avoid the need to involve the Court of Protection in one’s affairs would be to make a Lasting Power of Attorney (“LPA”) before problems arise. The Donor (the person donating the power to another) must have capacity to make provision for a time in the future where they may no longer have capacity.

The main benefit of a LPA is that it gives choice to the Donor, they can appoint somebody that they trust and they can set out in advance what they would like to happen if they were to lose capacity. In most cases the Donor will decide to appoint a family member or close friend to be their Attorney, this makes the whole process more personal.  Once registered, the Attorney can make decisions as if they were the Donor. To safeguard the interests of the Donor, the Attorney must always act in the Donor’s best interests.

There are two types of LPA’s. A property and financial affairs LPA is for dealing with finances and it gives powers such as the ability to sell the Donor’s house and manage bank accounts. A health and welfare LPA is for decisions relating to health and personal welfare, such as what care a person is to receive and where they are to live. By having two distinct LPA’s, the Donor is afforded more choice and flexibility to put their wishes in place, perhaps with the use of a personal and professional appointment to ensure balance.

Though there are formalities to making an LPA, (it must be registered with the Office of the Public Guardian for it to be valid) it is a far simpler process than obtaining a full blown Deputy Order from the COP. It allows the Donor to put their affairs in order during their life time, providing reassurance that a structure is in place if help is needed in the future.

For more information or to discuss either a Court of Protection or Lasting Power of Attorney application, please do not hesitate to contact one of our specialist Wills and Probate solicitors.