The Court of Protection in a Family Law Context

What is the Court of Protection?

The Court of Protection is a court that serves to protect vulnerable people. This operates by making decisions about whether someone lacks mental capacity, and whether they are able to make decisions for themselves in regard to their financial and property affairs, and their health and welfare. The Court of Protection will often appoint a ‘Deputy’ who will be afforded permission to make decisions for the person who lacks mental capacity (known as ‘P’) and the person to whom the application relates, on either a limited or an ongoing basis.

The Court of Protection commonly makes orders in relation to a person’s financial and property matters, which would allow a Deputy to take control of a person’s assets. For example, allowing the Deputy to sell P’s property in order to pay for ongoing care home fees.

When making decisions, the Court of Protection will consider the best interests of P, which often includes the wishes of the individual. Section 3 of the Mental Capacity Act 2005 provides a four-stage test which the Court of Protection will consider, when deciding whether P is able to make decisions for themselves, namely:

• Whether they are able to understand the relevant information which relates to the decision;
• Whether they are able to retain this information in order to make the decision;
• Whether they are able to use this information in part of the decision-making process; and
• Whether they are able to communicate the decision that they have reached.

The fact that a person may simply make unwise decisions is not sufficient alone for the Court of Protection to deem that P is no longer able to make decisions for themselves.

Divorce cases

A Deputy has an ongoing responsibility to safeguard P’s assets. This often becomes relevant in situations where P may face divorce. Whilst the Deputy cannot make a decision as to whether P should commence with divorce proceedings, either instigated by themselves or by their spouse, their duty to protect P’s financial affairs means that they should ensure that they take steps to obtain the necessary legal advice to protect P’s legal position.

The Deputy should be advised upon the necessity of enshrining any financial settlement reached between parties, into a legally binding order. With this, parties will achieve a ‘clean break’ upon the settlement of their matrimonial finances. This would prevent P’s spouse from making a claim against P’s assets and income in the future. The security of P’s assets is often necessary to ensure that P’s future needs can be met, for example, the costs of care, therapy or adaptations to their home.

In situations regarding divorce, the Court of Protection is likely to pay significant consideration to P’s wishes and feelings, especially prior to the loss of their mental capacity. This was seen in the recent case of D v S [2023] EWCOP 8, whereby P suffered a severe brain injury whilst he had already separated from his wife, and divorce proceedings had begun. The judge considered P’s best interests together with evidence that suggested P had considered that his marriage had broken down, at the time in which he had capacity. As such, the judge considered the decision to allow the divorce to proceed was in accordance with P’s wishes and best interests, and thereafter the parties’ Decree Nisi was granted.

Cohabitation

In situations where P may invite their partner to live with them in their home, the Deputy should ensure that they source the appropriate legal advice in relation to the risk that this arrangement presents. Cohabitation Agreements are often used as a suitable way to limit this financial risk to P, and ultimately safeguard their assets, upon the breakdown of their relationship.

Frequently Asked Questions

What is the Court of Protection?

The Court of Protection is a specialist court that makes decisions for people who lack the mental capacity to make decisions about their property, finances, health, or welfare.

How does the Court of Protection decide whether someone lacks mental capacity?

Capacity is assessed using the four-stage test in the Mental Capacity Act 2005, which considers whether the person can understand, retain, use or weigh information, and communicate their decision.

What is a Deputy and what do they do?

A Deputy is a person appointed by the Court of Protection to make decisions on behalf of someone who lacks capacity. This can include managing finances, property, or, in some cases, health and welfare decisions.

When should someone apply to the Court of Protection?

An application is needed when important decisions must be made for someone who lacks capacity and no valid Power of Attorney is in place.

What is the difference between the Court of Protection and the Office of the Public Guardian (OPG)?

The Court of Protection makes legal decisions or appoints Deputies for people who lack capacity. The OPG supervises Deputies and attorneys, keeping records and investigating concerns about how decisions are being made.

Examples

Example A

Divorce with lost mental capacity

Mark and Anna separated two years ago, and divorce discussions had begun. Before the financial settlement was agreed, Mark suffered a severe stroke and lost capacity. His sister was appointed as his Deputy for property and financial affairs.

Mark’s Deputy cannot decide whether he should divorce, but she must act to protect Mark’s financial interests. She instructs a family lawyer, and the Court of Protection considers evidence showing Mark previously intended to proceed with the divorce. The Court allows the divorce to continue, ensuring Mark’s assets are secured through a clean-break order.

Example B

Family members disagree about best interests

David lacks capacity due to a learning disability. His mother believes he should continue living at home, while his brother feels a supported-living placement is safer and more appropriate.

After failed mediation, both parties apply to the Court of Protection. The Court hears evidence from medical professionals and considers David’s past preferences (he often said he wanted more independence). The Court decides it is in David’s best interests to move to supported living.