Section 45(1) of the Mental Capacity Act 2005 established the current court of protection. Section 15 to 23 gave the court of protection jurisdiction over personal welfare of Protected Party (P) , personal finance and property finance and healthcare of anyone who lacks the capacity to make specific decision.
The purpose of the court is to protect vulnerable people, ensuring that their best interests are the centre of any decision-making. Section 17 of the Act sets our the personal welfare issue the court can deal with; section 18, the powers of the court over property and affairs. Section 20 of the Act sets decisions that only the court can make.
Court of Protection General Powers
The court can make a declaration, can make a decision on behalf of someone who is found to lack capacity, appoint a Deputy, authorise detention if it is in best interest of a person to do so and where a person is under 18, with the authority of the Lord Chief justice to transfer proceedings to the High Court
Court of Protection Specific Powers
Under Section 22 of the Mental Capacity Act, the Court can review, alter, monitor and if necessary revoke a Lasting Power of Attorney.
In addition, the Court may under Section 21A of the Act, providing it is in the best interests of a person to do so at the time, review a DoLS authorisation.
Court of Protection and the Office of the Public Guardian
The Court of Protection works closely with the Office of the Public Guardian (OPG) with the Court able to make decisions under the Act and the OPG having an ongoing statutory supervisory role to ensure that Attorneys or Deputies carry out their legal duties.
Why is the Court of Protection needed?
This court is required to assist where a serious decision needs to be made for someone who lacks capacity and there is a disagreement or no one is authorised in that respect. The main concern of the court is to ensure they conduct proceedings in line with the best interest of P.
An application should be made where consensus cannot be reached having exhausted other options including a Best Interests meeting.
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