Court of Protection Solicitors
What is the Court of Protection solicitors’ service?
The Court of Protection was created under the Mental Capacity Act 2005. It has jurisdiction to make decisions relating to property, financial affairs and personal welfare for people who lack the mental capacity to make decisions for themselves.
We have a dedicated department that specialises in Court of Protection solicitor matters. We are one of few firms contracted by the Legal Aid Agency to provide publicly (formally legal aid) services for proceedings concerning someone who is deemed to lack capacity under the Mental Capacity Act.
We can provide expert representation for family members who have been affected by the Mental Capacity Act. There may come a time when a loved one loses capacity and best interest decisions are being made on their behalf, decisions which you may not believe to be in their best interests. These decisions can be challenged in the Court of Protection, examples include;
• Restrictions on contact and visits
• Where they should live
• What care and/or treatment they should receive
• Social relationships and community access
• Being detained in hospital or care home against their will
• Capacity assessments
• Any other aspect relating to their health and welfare or finances
If there are on-going proceedings or you have any concerns and you require some advice, assistance or representation then one of our experienced solicitors can assist. We are members of the Court of Protection Practitioners Association and have been awarded the Law Society quality mark for excellence in practice management and client care.
Deprivation of Liberty Safeguards (DoLS)
If an individual (P) has been assessed as ‘lacking mental capacity’ and they are unable to make decisions about where to live and what care to receive, it may be necessary for others to make this decision on P’s behalf. A best interest decision will be made and if that decision is for P to be detained in a care home or hospital then there needs to be an authorisation and a deprivation of liberty safeguard must be granted by the local authority.
The DoLS framework is there to protect the rights of P who has been detained in a care home or hospital setting. It ensures that the Human Rights of the individual are maintained. A DoLS can be granted in locations other than a hospital or a care home, but these would have to be authorised by the Court of Protection Solicitors as opposed to the local authority.
Challenging a DoLS in the Court of Protection
Article 5 of the European Convention on Human Rights provides for a right to personal liberty and freedom.
It does however, permit the lawful detention of persons with unsound mind in accordance with a procedure prescribed by law.
The DoLS framework provides this procedure, but Article 5 also requires provisions to be in place for those deprived of their liberty to have the right of access to prompt judicial proceedings to challenge the lawfulness of their detention. This is where the Court of Protection solicitors service comes in; those who are on a DoLS have the right to appeal the decision to be detained, by what is often referred to as a s21A appeal. Section 21A of the Mental Capacity Act 2005 provides the right to appeal a decision made on behalf of P, for example, where they should live or what care and treatment they should receive.
An appeal can also be made if there is the belief that the requirements for the DoLS are not met. For example, if there are reasons to believe that P has the capacity to make decisions about where he/she should live, or the deprivation of liberty is not in their best interest.
Personal Representatives, s39D IMCA’s and Family Members
Personal Representatives have a positive obligation to assist P in challenging their deprivation of liberty when P is clearly and consistently objecting to their care arrangements.
At Thaliwal & Veja Solicitors, we have a dedicated Court of Protection Solicitors department that specialises in s21A appeals and in providing expert advice and assistance to personal representatives and concerned family members. In addition, we regularly act under the instruction of the Official Solicitor.
Speak to our head of department, Rakesh Veja, who will be able to provide you with immediate advice and assistance. We provide representation on a national level.
Tags – Court of Protection Solicitors – Court of Protection Solicitor