When someone can’t make certain decisions for themselves because they lack mental capacity, the Court of Protection can step in to make decisions on their behalf. The court exists to protect vulnerable adults and ensure that any decisions made for them are lawful and in their best interests.
Court of Protection disputes arise when there is disagreement about what should happen for that person. These disagreements can involve families, carers, medical professionals, local authorities or the Office of the Public Guardian. In many cases, everyone involved wants what is best, but they cannot agree on what that looks like in practice.
This article explains what Court of Protection disputes are, common examples, how decisions are made and when legal advice can help.
What is the Court of Protection?
The Court of Protection is a specialist court in England and Wales that deals with decisions made under the Mental Capacity Act 2005. It has the power to make decisions for adults who lack capacity for a specific issue or to appoint someone else to do so.
The court usually deals with two broad areas. The first is property and financial affairs, such as managing money, paying for care or selling a home. The second is health and welfare, which covers decisions about medical treatment, living arrangements and care.
Importantly, capacity is decision specific. A person may be able to manage daily spending but not complex investments. They may understand some healthcare choices but not others. The court only becomes involved where capacity is lacking for the particular decision in question.
What counts as a Court of Protection dispute?
A dispute is not simply an application to the court. It’s a situation where two or more people disagree about a decision affecting someone who lacks capacity. The disagreement may be about whether the person has capacity at all, who should make decisions for them or what decision is truly in their best interests.
Some disputes arise suddenly, such as during a medical crisis. Others develop gradually, for example when a person’s health declines and families begin to disagree about long term care or finances. In either case, the court provides a legal framework for resolving the issue.
Common types of Court of Protection disputes
Disputes can take many forms, but there are a few areas that appear regularly.
Care and living arrangements
One common type involves care and living arrangements. Families may disagree with a local authority about whether a loved one should move into a care home, remain at home with support or live in supported accommodation. These cases often include arguments about safety, independence, costs and what the person would have wanted.
Medical treatment
Medical treatment disputes are another major category. These can involve disagreements between clinicians and relatives about serious treatment decisions, including whether a procedure is appropriate, whether a person should receive life sustaining treatment or whether treatment should stop. Because these decisions can be urgent and emotionally charged, court involvement can provide clarity and legal reassurance.
Finances
Financial disputes are also common. Families may disagree about whether to sell a property to fund care, how savings should be managed or whether gifts or transfers of money are appropriate. In some situations, concerns arise about financial abuse or misuse of funds by a relative or attorney. The court can intervene to protect the person and their assets.
Deputyship
Deputyship disputes often happen where more than one person wants to be appointed as deputy or where someone believes a current deputy is not acting properly. Disagreements about deputy conduct, conflicts of interest or unclear decision making can all lead to court proceedings.
Deprivation of liberty
Finally some disputes involve deprivation of liberty. This happens when a person is under continuous supervision and is not free to leave a care setting, such as a care home or hospital. If the person or their family objects to those arrangements, they can apply to the Court of Protection to challenge whether the restriction is lawful and in their best interests.
How the Court of Protection decides disputes
When a dispute comes before the Court of Protection, the court follows a clear legal process. The first question is always whether the person has capacity to make the specific decision being argued about. Capacity is assessed using the Mental Capacity Act test, which looks at whether the person can understand, retain, weigh up and communicate the relevant information.
If the person is found to lack capacity for that decision, the court must then decide what is in their best interests. This is not based solely on what others think is best. The court considers a wide range of factors.
These include medical evidence, care assessments, the views of close family and professionals and importantly, the person’s own wishes, feelings, values and beliefs. Where possible, the court aims to choose the least restrictive option. That means supporting the person’s independence and freedoms as much as their safety allows.
The aim is always to make a decision that protects the person while respecting who they are and how they would have wanted to live.
Can disputes be resolved without a full hearing?
Not every conflict ends in a full court hearing. In fact, many Court of Protection disputes are resolved before that stage. This can happen through negotiation between the parties, round table meetings or mediation.
Early resolution can be helpful because it reduces stress for everyone involved and avoids lengthy delays. It can also reduce costs, which is important when the person’s own funds may be used to pay for legal proceedings.
Even if agreement is reached outside court, it still needs to reflect the person’s best interests and legal rights. In some situations, the court will still approve a settlement to ensure it is appropriate and lawful.
When should you seek legal advice?
Court of Protection disputes can be emotionally difficult and legally complex, especially when family relationships are strained or decisions are urgent. Legal advice from dispute resolution solicitors is particularly important where the disagreement involves high stakes welfare decisions or large financial issues.
You should consider speaking to a solicitor if there are concerns about a loved one’s care, living arrangements or safety and the people involved cannot agree. It is also important to get advice if you suspect financial abuse, misuse of funds or a deputy or attorney acting improperly.
If a dispute involves a local authority or NHS body or if deprivation of liberty is being challenged, specialist legal support is strongly recommended. These cases often involve detailed evidence and strict legal tests and having the right guidance can make a real difference.
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Please note that this article is solely for informational purposes. It’s not a substitute for legal advice. We encourage readers to contact Osbourne Pinner for case-specific guidance.
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