Direct Access Barrister
Wills, Trusts & Estate Planning
Anatomy of a case · what to expect, end to end
Anatomy of a Court of Protection caseWhen someone can no longer decide for themselves — deputyship, one-off decisions, and disputes about care
The Court of Protection makes decisions for people who lack the mental capacity to make them for themselves — through dementia, brain injury, a learning disability or mental illness. It is not a court of blame; its single question is what is in that person’s best interests. This note explains when it is involved, the routes through it, and how a case actually runs. It is general information, not advice on a particular situation. The principle at its heart Capacity is decision-specific and presumed. A person may have capacity for one decision and not another, and no one is treated as unable to decide until it is shown. Everything the court does is governed by the Mental Capacity Act 2005. The way to avoid it entirely A registered Lasting Power of Attorney, made while capacity remains, keeps these decisions with people you chose — and out of court. It is the single best pre-emption (see Lasting Powers of Attorney, explained).
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The three things the court is asked to doAppoint a deputyWhere someone has lost capacity without an LPA, a family member (or a professional) applies to be appointed deputy — usually for property and financial affairs, more rarely for health and welfare, which the court prefers to decide itself. A deputy manages the person’s affairs under ongoing supervision. Make a one-off decisionSometimes only a single decision is needed: selling the person’s house, making a statutory will on their behalf, authorising a significant gift, or resolving where they should live. The court decides that one question without appointing a standing deputy. Resolve a disputeThe hardest cases: family members disagreeing about care, a challenge to how an attorney or deputy is acting, or a serious welfare question — medical treatment, contact, a move into residential care. These are contested and evidence-heavy, and the person at the centre is separately represented.
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How a case runs1
The capacity assessmentEverything starts with evidence that the person lacks capacity for the decision in question — usually an assessment by a doctor or social worker on the prescribed form (COP3). Without it, the court has no jurisdiction. Capacity can also be the very thing in dispute. 2
The applicationThe applicant files the forms setting out who the person is, what decision is needed and why, with the capacity evidence attached. Close family and anyone with an interest must be notified — and, importantly, the person themselves is told, in a way they can understand. 3
Uncontested: decided on the papersA straightforward deputyship with no objection is usually decided without a hearing, on the documents. The court issues the order, and (for a property-and-affairs deputy) sets a security bond and annual reporting to the Office of the Public Guardian. 4
Contested: directions, evidence and a hearingWhere there is disagreement, the court sets a timetable much like other litigation: statements, sometimes an independent expert on capacity, and often the Official Solicitor or an advocate representing the person at the centre. A judge then decides, always by the best-interests test — not by which relative shouts loudest. ✓
The order, and what followsThe court makes the decision or appoints the deputy, and stays involved: deputies report annually and must return for authority on anything outside their powers — a large gift, a house sale, a statutory will. Welfare orders can be reviewed as the person’s situation changes. It is a supervisory jurisdiction, not a one-off. A word on costs and tone. In property-and-affairs cases the costs usually come from the person’s own funds; in welfare cases each party generally bears their own. But the deeper point is that these are family matters wearing legal clothes. The court rewards those who focus on the person’s best interests and looks hard at those pursuing their own. Approached in that spirit — and, better still, pre-empted with an LPA — most situations never need a fight at all.
Where we come in
A fixed-fee deputyship application prepared properly, an application for a one-off decision (a statutory will, a gift, a sale), or advice and advocacy in a contested welfare or financial dispute — each a defined piece of work at a fee agreed in advance. Best of all: the LPAs that stop the court ever being needed. This note is general information about the Court of Protection in England and Wales and does not constitute advice on a particular situation. Procedure and forms change; take advice on your own circumstances. |