What is the Court of Protection?
The Court of Protection is part of the family division of the High Court. It can make decisions about a person’s financial matters or their health and welfare, where the individual lacks the mental capacity to make such decisions themselves.
The Court of Protection can give an applicant the authority to act on behalf of a person who has lost their mental capacity, but has not already set up anybody with the Power of Attorney. So it’s the place to go if the person lacking capacity has not made arrangements for someone else to make decisions if they can’t.
A Lasting Power of Attorney
If you think it’s going to be necessary, it is cheaper and better if you set up a Lasting Power of Attorney (LPA), than leave it to someone else later to make a court application because you can no longer manage your affairs. Setting up an LPA has the great advantage of allowing you to choose who you think will be the right person to take responsibility for your affairs. You should ask the person beforehand, though, if they’re willing to take it on, so they are aware of what you’re proposing and can object if they don’t want the responsibility. The person who is to have the Power of Attorney must have sufficient mental capacity to understand and direct your financial affairs. Choose the person you most trust to take on the role. It should be someone who will be reliable, honest and is good with paperwork and officialdom. Do this when you have capacity, otherwise it may be too late to complete and register a LPA application.
Applying to the Court of Protection
When you no longer have the capacity to manage your own affairs, a relative needs to apply to the Court of Protection (a much costlier exercise) to be appointed as their deputy, which gives them the right to act on your behalf. There are lawyers who specialise in these kinds of cases but you’ll have to pay. Legal aid is not available. Consequently many applications are made by litigants in person ( LIPs ) who find the processes daunting, difficult to understand and expensive. See our LIPs page for more guidance.
What if the Power of Attorney is misused?
Anyone entrusted with looking after a relative’s finances or health and welfare should perform this task with care and honesty. But what if they don’t and you suspect they’re behaving carelessly or even worse they’re taking advantage of their position and maybe even behaving criminally. These kinds of things do happen, especially where large amounts of money are involved.
Always make sure you have evidence before taking action
If you suspect something is wrong, the first thing to do is to make sure you have the evidence. Simply asserting that something bad is happening is not good enough. You should have evidence in support of what you’re saying and be as sure as you can.
For example, you might believe that money is being spent by the person with Power of Attorney on things unrelated to the vulnerable person – referred to as ‘the donor’. Maybe money has been spent on an expensive birthday lunch for the donor but the donor tells you doesn’t remember any such event and swears she didn’t attend. Fortunately the attorney has the restaurant bill with the date, the table reserved, the number of people the table was booked for and all the charges including one for a birthday cake with the donor’s first name on it. There are also some photographs of the event showing everyone who attended including the donor. Two of the people in the photograph write letters confirming that the photos were of the actual birthday party. These combine to show that the accusation is untrue.
Don’t make accusations before you’ve got the evidence. You may still be right though, but chose the wrong example. So take time to get things recorded and make sure you’re on firm ground before embarking on getting advice or going to the court as a LIP.
How can ONRECORD help?
ONRECORD is designed to help you gather evidence and makes it easy for you to make a record of anything you think suspicious. When you think there’s enough evidence to seek advice, go to the police, if you think a crime has been committed, or start proceedings in the Court of Protection as a Litigant in Person.