26th September 2019
Court of Protection & Mental Capacity
Our Court of Protection and Mental Capacity team has significant expertise and breadth of experience and advises clients on all aspects of mental capacity law, including in proceedings in the Court of Protection. We represent the interests of clients who lack capacity, their family members and other concerned parties.
Specialist legal advice is crucial in protecting an individual’s rights and never more so than where someone does not have the mental capacity to look after their affairs or take decisions themselves.
Lack of capacity can be permanent (for example arising from a mental disorder such as Autistic Spectrum Disorder or a degenerative condition such as dementia) or temporary (for example where a person suffers from an intermittent mental health condition).
Where a person lacks capacity to instruct a solicitor, they still need access to legal advice and representation and in that case, we take instructions from someone on their behalf. In court proceedings that person is referred to as a litigation friend. We are regularly instructed by the Official Solicitor. We regularly assist clients in challenging deprivations of liberty authorised under the Mental Capacity Act and also in a wide range of decisions that may be made in a person’s best interests, by public bodies such as the NHS or the local authority social services department. We do our best to reach a satisfactory outcome without the need for court proceedings but sometimes this is inevitable and disputes are then decided in the Court of Protection.
Some examples of areas we regularly advise on:
- Whether someone is being unlawfully deprived of their liberty.
- Whether someone should be deprived of their liberty with reference to the Deprivation of Liberty Safeguards (DoLS).
- Where someone should live e.g. residential care, supported living or in their own home or that of a family member or carer.
- Who the person should have contact with, where and how often.
- What medical treatment and care the person should have especially if they are indicating a refusal of treatment.
- Whether the person should be contributing to their care costs or whether they qualify for NHS continuing healthcare. Contact the CHC team
- Whether the correct community care assessments been completed or has there been a failure to provide the identified care following an assessment.
- Sadly issues of abuse of incapacitated and vulnerable adults do arise, whether financial or otherwise and we can assist in those circumstances
- Applications to the Court of Protection on behalf of someone who wishes to be appointed as deputy for a person lacking capacity.
- Registration of Powers of Attorney.
- Challenging the appointment of an existing deputy or attorney (whether under a Lasting Power of Attorney or an Enduring Power of Attorney)
- Challenging local authorities and NHS bodies about a failure to provide section 117 aftercare under the Mental Health Act 1983 after a person’s discharge from hospital following a period of detention under section.
Many of these situations have Human Rights Act implications, for example, Article 5: Right to Liberty and Security is relevant in unlawful deprivation of liberty cases and Article 8: Right to Respect for Private and Family Life might also be relevant.
We are happy to talk to you about your concerns whether they relate to you or someone else.
Cartwright King provides advice across the country from our network of offices including Birmingham, Bedford, Bolton, Derby, Leeds, Leicester, London Temple, Manchester, Middlesbrough, Northampton, Nottingham, Sheffield and Worcester.
Please contact us for a free initial consultation on 0808 168 5550 or email us on firstname.lastname@example.org.
You can always call us for free initial advice on 0808 168 5550 or email on email@example.com
Let us know how we can help. Just provide a brief outline of your query.