Court of Protection applications - property and affairs

Under the Mental Capacity Act 2005 , when a person (P) lacks mental capacity, his financial affairs may be subject to the control of the Court of Protection.

P may be an adult or child and could lack capacity for many different reasons including through physical or mental illness, learning disability or brain damage following a road or other accident.

If it is established that P lacks mental capacity to deal with an issue or issues himself, the Court of Protection can make a decision or appoint a deputy to make continuing decisions on P’s behalf. Any decision made on behalf of an incapacitated person must be made or done in his best interests (s1(5) Mental Capacity Act 2005).

Certain decisions about P’s financial affairs are subject to the control of the Court of Protection even where a deputy is appointed to handle P’s finances, or where P made an enduring or lasting power of attorney (at a time when P had capacity) which has been registered with the Office of the Public Guardian.

If an application is made requesting the Court to make a decision on P’s behalf and P is joined as a party to the proceedings, the Official Solicitor may be requested by the Court to act as P’s litigation friend.

P is generally a joined as a party to applications for authority to execute a statutory will or codicil on behalf of P, to execute a deed of variation of the estate of a deceased person in which P has an interest, to make outright gifts, or to transfer any of the property of P’s into a trust (settlement), but these examples are by no means exclusive.

The cases now come in at the rate of over 600 per annum and the Official Solicitor represents P and helps and advises the court in reaching a decision in P’s best interests.

Please note the Court of Protection’s practice directions concerning:

  • the appointment of a litigation friend
  • making applications for statutory wills, codicils, settlements and other dealings with P’s property

These can be found on the Court of Protection page

In particular, when drafting a proposed statutory will for the Court’s consideration the testimonium and attestation clauses must follow the requirements of section 3 (2) of schedule 2 to the Mental Capacity Act 2005. A precedent is provided as the annex to the above practice direction.

The Court of Protection Rules 2007 govern procedures followed in the Court of Protection. Case reports of important decisions can be found on the Court of Protection pages on the Bailii website.

For further information please contact the property & affairs team on  020 3681 2758.

Official Solicitor and Public Trustee

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