Family Solicitors

The Court of protection exists to ensure that the voices of those who lack the mental capacity to make decisions for themselves do not go unheard. Capacity is defined in the Mental Health Act 2005.

The Court of Protection is legally responsible for dealing with property, financial affairs, personal welfare and healthcare of individuals who fall within the scope of ‘lacking mental capacity’.

Capacity within the context of family proceedings

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.

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 of the Mental Capacity Act:

S.2(1) A person lacks capacity in relation to a matter if at the material time:

• They are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain

• A person’s age or appearance or


• A condition or an aspect of behaviour, which might lead others to make unjustified assumptions about their capacity


In relation to any form of litigation, the capacity test applies to the entirety of the process; it is not possible to have capacity for some decisions.
When issues regarding an individual’s capacity arise within family proceedings, an expert is usually instructed to provide clarity via a capacity assessment. If an individual is considered to ‘lack capacity’ upon the expert’s recommendation, they become a protected person in the eyes of the court. Whilst the individual will still be able to provide their wishes and thoughts within their matter, they will however, require the assistance of a litigation friend or an official solicitor to make decisions in their best interests.

How are these applications dealt with in the family courts?

On occasion, an application made within the family courts may give rise to a parallel application in the Court of Protection with both applications heard alongside one another. An example of this stems from Deprivation of Liberty Orders within care proceedings for a child under the age of 18. In most circumstances where this occurs, when the child in care proceedings reaches the age of 18, both the Care Order and Deprivation of Liberty Order would come to an end. If however, the local authority is of the view that the order should continue, and there are suitable grounds for the individual's liberty to remain restricted, then an application to continue to deprive the individual’s liberty can be made within the Court of Protection.

There are certain decisions that 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.

Court of Protection and deputies

A deputy is a court appointed individual who manages financial affairs or complex matters for a protected person, often making key decisions on their behalf. The court will usually appoint a deputy if an individual has not appointed an attorney under a lasting power of attorney and there are key decisions that require consideration.

A deputy can be a family member or friend as noted above, or where there is a lot of money to be managed, a professional deputy. The only requirements for a deputy in theory is being 18 years old or above and having the mental capacity to become an individual’s deputy.

Anyone applying to become a deputy for an individual with the Court of Protection must be able to prove the following:


1. They act within the individuals best interests at all times, considering their values, views and preferences


2. They have the necessary skill set required to act as a deputy, this varies from case to case.


3. They are trustworthy and reliable
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What orders can be made by the Court of Protection?

The Court of Protection general powers include:


• Deciding if a person has capacity to make a particular decision for themselves or whether they require assistance


• Deciding whether an action is in a person`s best interest


• Giving people permission to make one-off decisions on behalf of someone who lacks mental capacity


• Handling urgent or emergency applications where a decision must be made on behalf of someone who lacks capacity without delay


• Ruling whether a person is being deprived of their liberty under the Mental Capacity Act


• Making decisions about a lasting power of attorney or enduring power of attorney and considering aby objections to their registration

Appointing deputies to make ongoing decisions for people to lack mental capacity
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Court of Protection at Duncan Lewis

Duncan Lewis Solicitors has a team of specialist solicitors who represent parents, family members and children in applications that are made in this niche and specialist area of law. The company also has a legal aid contract and as such is able to represent parties in Court of Protection proceedings with a family element.

How can the case be funded?

Duncan Lewis is able to provide legal aid depending on the type of application to be made and the team is specialist solicitors are more than to assist with undertaking assessments in respect of legal aid entitlement.

About the author: William Davis is a dedicated family and childcare caseworker who assists our highly regarded team of specialists in all areas of child care law, including in cases concerning substance and alcohol misuse, mental health, domestic abuse and neglect.

William works under Emine Mehmet, who is a widely respected director of family and childcare law at Duncan Lewis Solicitors, recommended as a specialist for her work by the independent legal directory, The Legal 500 UK and ranked in Chambers and Partners UK.

Her caseload case comprises a broad range of privately and publicly funded (legal aid) family and childcare matters, such as acting for parents and children, whether through their guardians or direct, and parents, in care proceedings, private law children disputes and domestic abuse matters.

For advice in any family or childcare matter contact:

William via email at WilliamD@duncanlewis.com or via telephone on 020 7014 7355.

Emine via email at emineme@duncanlewis.com or via telephone on 020 7275 2799.