Update to the Court of Protection process

When a person loses capacity to make decisions for themselves due to an impairment or disturbance of the functioning of the brain an application might need to be made to the Court of Protection for authority to make one or more decisions for that person.

The Court have introduced a new assessment of capacity form this week which will require a lot more input from the person making the application.

The mental capacity act focuses on 5 main principles:

• assume a person has the capacity to make a decision themselves, unless it’s proved otherwise
• wherever possible, help people to make their own decisions
• do not treat a person as lacking the capacity to make a decision just because they make an unwise decision
• if you make a decision for someone who does not have capacity, it must be in their best interests
• treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms

With the new assessment of capacity form the applicant will need to set out what steps have been made to help the person make the decision.  Professionals helping family members will therefore need to guide family members through this process and seek evidence of what steps have been taken.

Detailed background information or a note or copy of formal instructions made to the capacity assessor will need to be provided as part of the court application. Whilst this was also as function of the previous assessment form it now appears to be mandatory.

The Questions that the assessor needs to ask the Patient and answer in the capacity form have also changed and are more detailed.  Overall the assessment is more Patient centred which can only be seen as a positive step.

No guidance has yet been released for a cut off date for using the old form and many applications will be sitting with the Court using the old form.

The Court of Protection team at Wilson Browne welcome any changes that are centred around the patient, the focus should always be on Patient and delving a little deeper at the application stage should help the overall process to manage the affairs of someone with diminished capacity or making specific decisions.

The area of law can be complex, our specialist team can help guide you through.  Cal us on 0800 088 6004 or fill in our online form.