Court of Protection/ Mental Capacity Law
The Court of Protection is responsible for assisting people that no longer have the mental capacity to make decisions. It is the responsibility of the Court to ensure that vulnerable persons cannot be exploited, and those responsible for their welfare are assisting appropriately. Essentially, there are two main areas that the Court will make decisions regarding:
- The health and welfare of the individual;
- The finances and property arrangements for the individual.
“WE CAN SUPPORT YOU THROUGH THE PROCESS”
Duncan Lewis Solicitors have been recognised by Legal 500 2015 Edition as a leading practice in Court of Protection and Mental Capacity practice. Referrals can be made by any of the following:
- Private Clients
- From the Official Solicitor
- Independent Mental Capacity Advocates (IMCAs)/ Independent Mental Health Advocates (IMHAs)/ Paid Relevant Persons (RPR’s)- who wish to make a s21A appeal to the Court of Protection in relation to a deprivation of liberty”
- The families of the vulnerable individuals
- Organisations providing care
What is an Independent Mental Capacity Advocate (IMCA)/ RPR?
RPRs/IMCAs are a legal safeguard for people who lack the capacity to make specific important decisions: including making decisions about where they live and about serious medical treatment options. IMCAs are mainly instructed to represent people where there is no one independent of services, such as a family member or friend, who is able to represent the person.
If you are an RPR/ IMCA/ Advocacy service please contact us if you require assistance. We would be pleased to provide free training upon request upon the various issues that could be raised in court of Protection matters. We understand that your role as an IMCA is an important one, and we want to support you in every way possible.
What is an Official Solicitor?
The Official Solicitor acts for people who, because they lack mental capacity and cannot properly manage their own affairs, are unable to represent themselves and no other suitable person or agency is able or willing to act.
What is a Litigation Friend?
When an individual lacks the mental capacity to take part in welfare proceedings in the Court of Protection, a litigation friend may be appointed to represent them. They will either instruct a solicitor to act on behalf of the person who lacks capacity, or they can talk directly to the Judge to provide the views of the person they are assisting. A litigation friend can be a family member, an advocate or the Official Solicitor – the litigation friend of last resort, holding a public office and funded by the Government
The court can appoint anyone to be a litigation friend, for example:
- A parent or guardian
- A family member or friend
- A solicitor
- A professional advocate, e.g. an Independent Mental Capacity Advocate (IMCA)/ Relevant Persons Representative (RPR)
- A Court of Protection deputy
- Someone who has a lasting or enduring power of attorney
What is Mental Incapacity?
Mental incapacity can be defined as a person’s inability to do any of the following:
- To understand the information relevant to the decision,
- To retain that information,
- To use or weigh that information as part of the process of making the decision, or
- To communicate his decision (whether by talking, using sign language or any other means).
When do you bring Court of Protection proceedings?
Court of Protection proceedings can be brought in any of the following circumstances:
- Complaints – possibly against the managing authority or supervisory body; I.e. by a family member
- A safeguarding adult alert – about the person or another vulnerable adult; I.e. by a family member/ a concerned person/ doctor/ IMCA/IMHA/RPR.
- A review for those people subject to a standard authorisation; I.e. by a IMCA/ IMHA/RPR/ Family Member
- An application to the Court of Protection whether or not a person is subject to a standard authorisation
Deprivation of Liberty
The Deprivation of Liberty Safeguards is the procedure prescribed in law when it is necessary to deprive of their liberty a resident or patient who lacks capacity to consent to their care and treatment in order to keep them safe from harm.
When applying to challenge a Deprivation of Liberty Safeguarding Order (DOLS), legal aid is available on a non means tested basis. This means that you do not have to provide proof of your income/ means in order to qualify for public funding.
At Duncan Lewis Solicitors, we regularly represent all parties in relation to these proceedings. Our experience and supporting solicitors are ready to assist you.
Funding/ Legal Aid
Health and Welfare applications
For Court of Protection health and welfare applications it is still very much possible to apply for legal aid, you are able to ascertain your eligibility for Legal Aid by bearing reference to the Legal Aid Agency’s Eligibility key card.
Deprivation of Liberty Applications
Non-means-tested Legal Aid is available for cases brought under Section 21A of the Mental Capacity Act 2005. These are cases in relation to Deprivation of Liberty Safeguarding Orders (DOLS)
For all other welfare cases, Legal aid is means assessed. If you are bringing an application as a litigation friend for “p” , the person who is means tested is “P”. This is because “P” is the person who requires legal representation.
Where “P” is in receipt of Income Support, income related Employment and Support Allowance, Income related Job Seekers Allowance or Guarantee Pension Credit, means testing is relatively simple, with a simple disposable capital limit of £8,000.
In other cases, means testing is more complex, with gross monthly income limit of £2,657 per month (£31,884 per year), disposable income limit of £733.00 per month and a disposable capital limit of £8,000. If “P” has a partner, income is added together and incorporated.
Click here to assess your eligibility for Legal Aid, you can do so by checking the Legal Aid Agency’s eligibility key card.