The Court of Protection exists to ensure the voice of those without mental capacity is properly heard. The definition of a person who lacks capacity and is over the age of 16 comes under the Mental Health Act 2005. The court has jurisdiction over the property, financial affairs, personal welfare and healthcare of people who lack capacity and are not able to make decisions themselves.
Capacity means the ability to use and understand information to make a decision and communicate any decision made. If a person is not able to do this, they are deemed to lack capacity. In the context of family proceedings, capacity may be relevant as to both capacity to litigate and to compromise proceedings, including capacity to consent to a consent order relating to divorce/ financial matters.
It is important to note that capacity is presumed unless it is established that the person lacks it by meeting the two stage test under S2(1) of the Mental Capacity Act:
Where issues of capacity arise in the family courts, an expert will be instructed to provide a capacity assessment/certificate. Where an individual is assessed as “lacking capacity”, such individuals are considered protected persons. In these circumstances, although the individual will be able to provide their wishes and feelings in relation to a matter/issue, they will require the assistance of either a litigant friend or the Official Solicitor to make the overall decision in their best interest and on their behalf.
On occasion, an application within the family courts may give rise to a parallel application being made in the Court of Protection and both being heard alongside one another. An example would be where an application has been made on behalf of a local authority for a Forced Marriage Protection Order in relation to a person over the age of 16. In these circumstances, normally a person would be able to consent to a marriage if over the age of 16 with parental consent or if the individual is 18 without parental consent. However, if the person in question lacks capacity then they would not legally be able to consent to any marriage regardless of their age and therefore the assistance of the Court of Protection maybe required.
In other family proceedings, the local authority may have made an application for a Deprivation of Liberty Order in relation to a child under the age of 16 alongside a Care Order. In normal circumstances, the Care Order comes to an end when the child reached 16 as would the Deprivation of Liberty Order. However, if the local authority is of the view that the order should continue and the person’s liberty should continue to be restricted, then an application could be made to continue to deprive their liberty within the Court of Protection.
Certain decisions cannot be made on behalf of those who lack capacity under the Mental Capacity Act 2005. These include family issues such as consenting to a marriage, civil partnerships and divorce. Therefore, a deputy manages their financial affairs. A deputy can be a family member or friend, or where there is a lot of money to be managed, a professional deputy.
Although a Deputy cannot make these decisions on someone’s behalf, the Deputy has a duty to protect their assets, which can often be substantial as a result of a personal injury award.
The starting point for the Court when dividing financial assets is to achieve “equality”. This can be a worry where one divorcing party, the person lacking capacity, has received a personal injury award that is intended to provide them with lifelong care and support.
Although the Court considers a number of factors including need and the extent of the effected person’s injuries, the court has made it clear that the personal injury award will not be automatically excluded on divorce.
In cases where the person lacking capacity is living with a partner and they are unmarried, the deputy should consider whether cohabitation presents the risk that said person’s partner will acquire a beneficial interest in a property that they own. Often this property is altered to meet their needs and has been purchased, and adapted using the personal injury award.
In such cases, the deputy can support the person lacking capacity to enter into a formal Cohabitation Agreement to make it clear that their partner is not acquiring any interest in their property notwithstanding that they live there and may make certain household contributions.
The Court of Protection general powers include:
Relating to the example above, if the individual or other parties involved within the proceedings disputed the issue of capacity then the Court of Protection has the power to decide whether the individual has capacity or not. This can be either related to one specific issue i.e. marriage or matters generally i.e. where the individual should reside, who the individual should reside with, who the individual should have contact with and whether they have capacity to engage in sexual relations . The court also has the power to declare whether an act or proposed act was or would be lawful in relation to the individual.
In relation to the Deprivation of Liberty Order, the court could continue to restrict the liberty of the individual by making such orders to include, but not limited to, the following:
Duncan Lewis Solicitors has specialist solicitors who represent parents, family members and children in applications made in this niche and specialist area of law. Our solicitors, trainee and caseworkers speak around 60 languages between them, to assist clients where required.
Duncan Lewis solicitors can provide legal aid depending on the type of application that has made. Our specialist solicitors are more than happy to assist making assessments for legal aid.