Court of Protection Disputes
“a hugely experienced Court of Protection team, which complements its contentious trusts and probate team admirably.” The Legal 500, 2024
Disputes around the care of vulnerable loved ones and seeking to ensure that their best interests are protected can be challenging and distressing. Our team of expert lawyers in the field of Court of Protection disputes are well placed to assist you in navigating these difficult times.
We bring and defend applications in the Court of Protection including disputes over an appointment of a deputy or attorney, disputes around a vulnerable person’s mental capacity, challenging gifts made by a deputy or attorney, disagreements arising in relation to statutory wills, challenging personal welfare decisions and disputes arising in relation to whether the deputy or attorney is acting in the best interests of a vulnerable person.
We also act in related civil action arising as a consequence of allegations concerning coercion or undue influence, rogue deputies or abuse of a Lasting Power of Attorney, such as breach of trust and/or fiduciary duty claims. These claims often extend to making applications for an injunction to prevent the perpetrator from disposing of or dealing with misappropriated assets.
Where a dispute is ongoing, we act as independent deputies, trustees or litigation friends to ensure that the interests of the person who lacks capacity and any disputed assets are protected during the litigation. Appointing a neutral professional can assist in resolving disputes between the parties.
Our Court of Protection team also has the unique benefit of being able to work closely alongside our Media & Reputation and Criminal Litigation teams. Increasingly, we are being instructed in Court of Protection matters where this additional expertise is needed because of the serious allegations of wrongdoing or the high profile nature of the people involved.
We are also experienced in all non-contentious aspects of Court of Protection work.
For more information, look at our frequently asked questions on disputes in the Court or Protection below.
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Frequently Asked Questions
What is the difference between a power of attorney and deputyship?
An individual makes a power of attorney when they have capacity so that the appointed attorney can look after their property and financial affairs and/or health and welfare if they lose capacity in the future. A deputy is appointed by the Court of Protection after an individual has lost capacity.
What should I do if I disagree with another family member about who should make decisions on behalf of my parent who lacks capacity?
If your parent lacks capacity any decision made on their behalf should be in their best interests. If your parent has an attorney or court appointed deputy then they are responsible for making the best interests decision. If you do not agree with that decision and are unable to reach an agreement, if the decision is sufficiently serious you may need to ask the Court of Protection to assist in the decision making process. You should seek legal advice to ascertain if this is necessary.
What can I do if someone without capacity is being exploited financially?
If someone without capacity is being exploited financially and they have an attorney or court appointed deputy it will be for that individual to take steps to resolve the situation, whether by reporting the matter to the police or considering taking action in the Court of Protection (which has powers of investigation) or civil courts (largely for recovery of assets). If someone without capacity is being exploited financially by an attorney then it should be reported to the Office of the Public Guardian (which also has powers of investigation). Similarly if someone without capacity is being exploited financially by a court appointed deputy an application should be made to the Court of Protection.
Can attorneys or deputies be removed if they are not acting in the best interests of a person without capacity?
Yes. If a deputy or attorney has not acted in the best interests of a person without capacity, has become incapable of acting as a deputy or attorney or has acted outside of their powers they can be removed.
What is a statutory will? Can you challenge it?
A statutory will is made by the Court of Protection on behalf of in individual who lacks capacity. It can be challenged for various reasons including if you are concerned that it does not reflect what the individual who lacks capacity would have wanted or if the statutory will is being made for someone that you believe has the capacity to make their own will.
How do costs in work in the Court of Protection?
The general rule in cases arising in relation to the property and financial affairs of an individual who lacks capacity is that the all parties costs of the proceedings will be met by the incapacitated individual. In cases involving health and welfare the costs are met by the respective parties. The Court of Protection has discretion to depart from the general rules.