estate law

What Role Does The Court Of Protection Have In Estate Law?

Linkilaw Legal Advice

What Role Does The Court Of Protection Have In Estate Law?

In English law, the Court of Protection makes decisions on financial or welfare matters for people who can’t make decisions at the time they need to be made – that is, for people who lack(due age, illness or else) ‘mental capacity’ for making decisions. In full, the Court is responsible for:

  • Deciding whether someone has the mental capacity to make a particular decision for themselves.
  • Appointing deputies to make ongoing decisions for people who lack mental capacity.
  • Giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity.
  • Handling urgent or emergency applications where a decision must be made on behalf of someone else without delay.
  • Making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration.
  • Considering applications to make statutory wills or gifts.
  • Making decisions about when someone can be deprived of their liberty under the Mental Capacity Act

When it comes to Estate Law, the Court of Protection plays a significant role: Illness and incapacitating injuries are common reasons that require the Court’s intervention, often to appoint a person capable of making decisions on behalf of estate owners.

One-off decisions and long-term arrangements

The Court provides two paths for those who find themselves in the position of requiring permission to make decisions on behalf of someone else:

  • Help with specific decisions: For emergency medical treatments and non-urgent issues that affect someone’s care – for example, the sale of a property.
  • Long-term help: For taking decisions over financial affairs or personal welfare during a prolonged period of time.

In the case of long-term help scenarios, the Court requires that the person who applies for decision-making permits has been nominated to be their ‘attorney’ when they made a lasting power of attorney (LPA) or enduring power of attorney (EPA). Such person can also apply to the Court of Protection to become a deputy when they lose their mental capacity.

How to apply

In the case that an owner has lost mental capacity and you want to sell an estate on his/her behalf, all of the following items must apply:

  • You’re one of two or more owners of property or land.
  • One of the owners has lost ‘mental capacity’.
  • You want to sell the property or land.

In addition, you’ll have to appoint someone to act on behalf of the owner, and only if you’ve got a registered power of attorney you may not need to apply. After the Court receives your application, you’ll receive a copy and be required to tell anyone named in your application (e.g. the person who’s lost capacity) about applying within 14 days of the issue date.

What if the application is rejected?

In such a case, applicants who had an oral hearing can appeal the Court’s decision. It is mandatory to apply within 21 days of the decision being made or within the time limit set by the judge who rejected the application.

To conclude, it is good to note that in a majority of cases the procedures tend to be fast and relatively simple. There are, of course, exceptions that will demand detailed legal assistance. For more information on how to act under the circumstances mentioned above, please visit the official Court of Protection section here.

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