Court of Protection Basics

The Court of Protection (CoP) is a superior court that has jurisdiction over all matters relating to the personal welfare and property and financial affairs of people lacking capacity. It operates under the Mental Capacity Act 2005 (MCA). Its main functions are:

• Making one-off decisions — For example, deciding whether it is in someone's best interests to move to a care home, have an operation, or be given a specific medical treatment, where there is dispute or uncertainty;
• Declarations about capacity — Formally determining whether a person has capacity in relation to a specific decision;
• Appointing deputies — Where there is no LPA and ongoing decision-making authority is needed, the court can appoint a deputy (see the Deputyship guide);
• Overseeing LPAs and deputies — Investigating concerns about attorneys or deputies acting improperly;
• Approving statutory wills and gifts — Making or authorising a will or significant gift on behalf of someone who lacks capacity to do so themselves.

An application to the Court of Protection is appropriate when:

• Someone lacks mental capacity and there is no LPA or EPA in place to deal with the matter;
• There is a dispute about whether someone has capacity;
• An attorney or deputy is suspected of acting improperly;
• A one-off serious decision needs to be made for someone who lacks capacity and there is disagreement about what is in their best interests;
• A statutory will needs to be made or approved.

The court is not for day-to-day decisions — health and social care professionals routinely make best-interests decisions without court involvement (under the MCA) for treatment and care decisions. The court is needed when there is a significant dispute, when the decision is of major consequence and requires judicial authorisation, or when an ongoing decision-making authority (deputyship) is needed.

Applying to the Court of Protection involves completing the relevant application forms (available from HM Courts and Tribunals Service), paying a court fee (though fee remission is available for those on low incomes), and serving the application on the relevant parties.

Court of Protection proceedings can be paper-based (for straightforward applications) or hearing-based (for contested or complex matters). Cases involving welfare issues are often more complex and may involve the Official Solicitor as litigation friend for the person lacking capacity.

Legal representation is advisable for most Court of Protection applications, particularly contested hearings. Many solicitors specialise in Court of Protection work. Legal Aid may be available for some cases, particularly those involving serious medical treatment decisions or safeguarding issues.

If someone lacks mental capacity and is being cared for in circumstances that amount to a deprivation of their liberty, a formal legal framework must be in place to authorise that deprivation. This is a fundamental protection of the right to liberty under Article 5 of the European Convention on Human Rights.

In care homes and hospitals, the existing framework is the Deprivation of Liberty Safeguards (DoLS), introduced by the Mental Health Act 2007 as an amendment to the MCA 2005. DoLS requires the care home or hospital (the supervisory body) to apply to the local authority to authorise the deprivation of liberty — a process involving assessments by two independent assessors. If authorised, the DoLS must be reviewed regularly.

The Liberty Protection Scheme (LPS) — introduced by the Mental Capacity (Amendment) Act 2019 — was designed to replace DoLS with a broader, simpler scheme that also covers supported living, shared lives arrangements, and domestic settings. Implementation has been significantly delayed and, at the time of writing, DoLS remains in force while the government works on the LPS implementation. Check the DHSC and NHS England websites for the latest implementation date.

For settings outside care homes and hospitals — such as supported living or someone's own home — a DoLS authorisation does not apply. In these cases, authorisation must be sought from the Court of Protection under what is known as a Re X or Cheshire West application. These applications are often made by councils or NHS bodies rather than families, but families should be aware of the framework and their right to be consulted.

If you are concerned that a family member is being deprived of their liberty without proper legal authorisation, you can raise a concern with the council's DoLS team, the CQC (which oversees DoLS compliance in registered services), or seek advice from a specialist MCA solicitor.