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Calls for review of The Court of Protection

23rd May, 2013

There has been much talk in recent weeks about the Court of Protection. Often referred to as secretive or shadowy, the Court of Protection makes decisions and appoints deputies to act on behalf of some of the most vulnerable people in our society, those who are unable to make their own decisions about their personal welfare, health, property or finances.

A Deputy is appointed if a person doesn’t make a valid lasting power of attorney whilst they have capacity to do. The Deputy is usually a family member or close friend. A solicitor may be appointed when there is no one suitable who can make decisions in the best interests of the person needing assistance. This is often the case if the person’s affairs are complex or the sums of money involved significant.

The Court of Protection has a panel of specialist Deputies it can appoint when no one else is available or suitable to act. Clive Pointon, head of Aaron & Partners LLP Wills, Trusts and Tax department is Chester’s only Court of Protection appointed panel Deputy.

The new Court of Protection was established under the Mental Capacity Act 2005 which came into force in October 2007. It frequently deals with the affairs of elderly individuals with dementia, disabled persons and those who have suffered catastrophic injury. Its workload has increased massively in recent years. In April 2008 the Court heard only 42 cases compared with 582 in April 2012. This is partly due an increased awareness of the rights of those who are mentally incapable and an ageing population.

The rulings made by the Court can be difficult and are often controversial including decisions to continue life by medical intervention or to cease life sustaining treatment and allow a person to die.

The justice secretary, Chris Grayling, has recently requested a review of the Court of Protection in relation to transparency of its decisions. Sir James Munby, President of the Family Division of the High Court of England and Wales has been asked to include the Court of Protection in an ongoing review of the Family Court system.

The majority of Court of Protection hearings take place in the Royal Courts of Justice London and the public are not permitted to attend. Although rulings are usually reported, judges have the power to ban or restrict press coverage. Given the very nature of the type of hearings and persons involved this confidentially is often necessary but controversial decisions and delays have given rise to suspicion and questions of openness.

Unfortunately the controversy increased earlier this year when Wanda Maddocks aged 50 became the first person to be sent to prison by the Court of Protection. The case was initially unreported but the facts subsequently revealed she had attempted to remove her father from a care home contrary to a Court decision.

As with all Court procedures there is no doubt that the rules and practices of the Court of Protection can be confusing even incomprehensible to members of the public, possibly at an already distressing and worrying time. It is vital to seek advice from a legally qualified Court of Protection specialist who will be familiar with the regulations and procedures involved.

Aaron & Partners LLP have an established team of Court of Protection specialists who can act as your advocate to help you through and achieve the best possible outcome for your family member or friend.

For more information please contact Wendy Randall on 01244 405419 or [email protected].

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