What is the Court of Protection?
The Court of Protection was created to enable individuals to make decisions about the welfare or financial affairs of people who lack mental capacity to make decisions themselves (when they need to be made) due to injury or illness.
What is mental capacity?
The Court of Protection can only order decisions for a person or authorise someone to make decisions on a person’s behalf, if the subject of the order lacks mental capacity to decide for themselves.
A person lack mental capacity where:
- They have an impairment of the brain, whether it is the result of injury, illness, or other factors such as drug use
- As a result of the impairment, they cannot make a decision at the time it needs to be made (although a person’s mental capacity can fluctuate)
- A person will be unable to make a decision where:
- They do not understand why the decision needs to be made
- They do not understand or cannot retain information needed to make the decision
- Are unable to weigh up information to come to an informed conclusion
A person with a brain injury may lack mental capacity because:
- They may be in a coma or be confused or disorientated as a direct result of the injury
- The frontal lobe area of the brain has been damaged, resulting in problems processing, retaining, and weighing up information
- Short term memory problems make it difficult to understand decisions at the time they need to be made
- Issues with emotional regulation caused by the injury may impede their ability to rationally consider a decision
Our Court of Protection solicitors’ expertise
If your loved one has suffered a brain injury which impedes their mental capacity to make their own decisions about their welfare or financial affairs, our specialist Court of Protection solicitors can help you obtain authorisation to make decisions on their behalf. Our expertise includes:
- Deputy appointments
- Statutory Wills
- Urgent or emergency decisions
- Deprivation of liberty
The Court of Protection can appoint a Deputy to make ongoing decisions on behalf of someone who lacks mental capacity. There are two types of Deputy and you can apply to be either one type or both:
- Personal Welfare Deputy – make decisions about things like a person’s day-to-day routine, their care, and their medical treatment
- Property and Financial Affairs Deputy – obtain authorisation to do things like pay a person’s mortgage, rent, or bills, organise their finances, manage their pension, and sell, buy, or manage property
Court of Protection Deputyship applications are particularly complicated and involve a number of different application forms, including an Assessment of Capacity form and information about your capability to carry out the Deputy role.
Therefore, it’s crucial that you consult an experienced Court of Protection lawyer who can make the application on your behalf, allowing you the best possible chance of being successful.
If your loved one has lost their mental capacity before they had the opportunity to make a valid Will, we can help you apply to the Court of Protection to make a Statutory Will on their behalf.
A person will be unable to make a Will themselves (referred to as lacking Testamentary Capacity) where they do not understand:
- What making a Will means
- How much money or property they own
- The effect of the Will on anyone named in it or left out of it
However, if your loved one dies without a Will, their money and property will be distributed according to the rules of intestacy, which might be contrary to their wishes. As such, we can help you truly reflect your loved one’s wishes by applying to make a Statutory Will on their behalf.
Urgent or emergency decisions
If you need to make a quick decision on behalf of a loved one, we can help you apply to the Court of Protection for either an:
- Urgent Interim Order – you are in the process of becoming a Deputy but need to make a one-off decision before your application has been approved, for example, to pay care fees; or
- Emergency Order – there is an immediate risk facing the person lacking mental capacity, for example, they need emergency treatment after a brain injury, and they are unable to consent themselves.
Deprivation of liberty
Where a person’s liberty is being deprived, perhaps because they are receiving neurological treatment in hospital or they are in a neuro-rehabilitation centre, and they lack mental capacity to consent to their care, the care provider must obtain Deprivation of Liberty authorisation from the local authority.
However, if you believe a loved one’s liberty is being wrongly deprived, either because the deprivation is not in their best interests or they have mistakenly been labelled as lacking mental capacity, we can help you apply to the Court of Protection to challenge the Deprivation of Liberty authorisation.
Why choose IBB Claims for your Court of Protection application?
At IBB Claims we have decades of experience in helping clients claim compensation for head and brain injuries either for themselves or on behalf of someone else.
However, our expert brain injury solicitors understand that, even if your brain injury compensation claim is successful, you and your loved ones face an uphill battle in terms of recovery and rehabilitation. We can help you achieve some peace of mind by supporting and guiding you through the Court of Protection application so you no longer have to worry about your injured loved one’s finances or personal welfare.
Our personal injury and clinical negligence partner, Malcolm Underhill, is a Fellow of the Association of Personal Injury Lawyers (APIL) and an Accredited Brain Injury Specialist.
As a firm, we are accredited by the Law Society for our skills and experience in Personal Injury matters, and Malcolm Underhill is an accredited Personal Injury Specialist.
We are also accredited in Lexcel, the practice quality mark which recognises our devotion to providing impeccable client care and legal practice management. This means you can always trust us to manage your case professionally, efficiently, and skilfully as well as providing you with advice which is always tailored to the precise circumstances of your case.
IBB Claims in independently regulated by the Solicitors Regulation Authority (SRA).
Get in touch with our Court of Protection lawyers today
For further advice and information, speak to our Court of Protection solicitors today by calling 0333 123 9099 or by emailing firstname.lastname@example.org.