MENTAL CAPACITY 

(Court of Protection) and the Inherent Jurisdiction

Every person has the right to make decisions about their own lives. However, if a person does not have the mental capacity to make a particular decision and there is a dispute about what should happen then the Court of Protection may need to make a decision in their best interests under the Mental Capacity Act 2005.

 

In some other cases where a person is vulnerable orders may be needed from the High Court under its powers – the ‘inherent jurisdiction’.

 

We have a dedicated and specialist team to help our clients in need. We advise and provide urgent assistance in cases where a person’s mental capacity is in question or where there are disputes about decisions to be made for someone who lacks capacity. We also act where the health or welfare of a vulnerable person is at stake.

 

Some cases also include disputes about whether a person is entitled to community care services and health services, and what services should be provided. Our expertise in community care law means that we are uniquely placed to navigate clients through the process at every stage.

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Situations which may arise include:

 

  • Where a person’s mental capacity to make a decision is in question

  • Where there is concern about a person being neglected or abused (safeguarding) – this could be physical, pyschological or financial abuse

  • Where there is disagreement about their best interests such as

    • where a person should live, 

    • how their care should be provided

    • whether the person needs treatment or other services

    • with whom a person should have contact 

    • whether a person should travel, including to move abroad

  • Where there is a linked dispute about management of a person’s finances

  • Deprivation of liberty cases (in care homes, hospitals and in the community such as supported living settings)

  • Disputes relating to a person who is vulnerable to abuse or neglect, even where they do not lack capacity, including undue influence and pressure.

 

We regularly represent clients in the Court of Protection in all levels of Court, including the High Court, the Court of Appeal and Supreme Court. 

 

We have close contacts with specialist barristers experienced in mental capacity casework who work with us as a team, and we will always select the best available barrister for the case.

 

Legal aid is available for welfare cases in the Court of Protection subject to meeting the required tests. Please see the ‘Funding‘ section for more details. If you do not qualify for legal aid we can advise about our charges and other funding options which will most suit you.