Adam Hogg
Senior Associate Solicitor and Department Manager, Court of Protection
English
It’s important to get specialist legal advice if you have a family member or loved one who lacks capacity to make important decisions for themselves.
A person could be assessed as lacking capacity to make particular decisions because of a diagnosis in later life, such as dementia or Alzheimer’s, because of a condition they were born or diagnosed with in early life, such as a learning disability or autism or because they have been involved in an accident that has left them with an injury to their brain.
This can mean that you need help and support to allow you to manage their money and property and make financial decisions on their behalf. Our compassionate, experienced Court of Protection Solicitors can take on this responsibility for you. We can also help you if a decision is or is going to be made by the Court that you disagree with.
If the Court has been asked to make a decision about your loved one's health and welfare, we can give you specialist support and advice, and be by your side throughout the process.
Call us on 0808 239 2251 or request a callback and we will help you.
Our Court of Protection team has been ranked in Chambers and Partners 2022 Guide and in the Legal 500 2022 Edition.
We can represent both the protected party and their Litigation Friend (including the Official Solicitor and professional advocates), and family members in disputes before the Court.
Everyone on our team gets great satisfaction from helping families and/or vulnerable people get the support and help they need. We know that small things can make such a difference, for example, making sure a person has access to nature and animals in their care setting if that’s what brings them joy. We take the time to get to know the vulnerable person so we can best understand how to help and support them.
Our Solicitors are also highly experienced and trained in communicating with people who lack capacity and will use various methods to help them participate in decisions about their life. We take our responsibility to act in the best interests of our client or your loved one extremely seriously and we’re committed to treating everyone involved in the case with respect and sensitivity.
You can be confident that we have the resources, contacts, and legal knowledge to advise on even the most complex Court of Protection matters.
The Court of Protection is a specialist court in England and Wales that can make decisions on behalf of someone who, due to a lack of mental capacity, cannot make decisions for themselves.
Lack of mental capacity could be permanent or temporary and be caused by an accident or an illness such as dementia. The Court of Protection is available to help people of all ages.
In the Court of Protection, the person who lacks mental capacity is known as ‘P’.
A Court of Protection Order is essentially the decision made by the Court. It is legally enforceable, so must be followed. For example, the Court can make an Order to appoint a Deputy for P or for P to get certain medical treatment or to have medical treatment stopped.
The Court can make decisions about:
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"A huge, national, Court of Protection team who cover every level of work"
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No. An LPA is created by a person (known as a Donor) who appoints an Attorney (or Attorneys) to manage their affairs in the event they lose mental capacity. At the time the LPA is made, the Donor has capacity.
There are two types of LPAs:
If a person loses mental capacity and does not have an LPA, the family can apply to the Court of Protection to appoint a Deputy.
The Court of Protection is not a fixed location. Hearings can be held everywhere from a local County Court to the Royal Courts of Justice in London. The best way to contact the Court of Protection is to speak to one of our team. We’ll make sure you can talk to the right people at the Court and support you in making an application or appealing a decision.
A Court of Protection Solicitor can apply to the Court on your behalf if you need a Deputyship Order for a loved one who no longer has mental capacity. Applications can also be made by the Official Solicitor and public bodies such as a local authority or an NHS Trust.
We’ll help you make a Court of Protection application quickly and support you through the process and eventual decision.
.Our Court of Protection Solicitors advise and represent clients on:
Applications to the Court of Protection will vary depending on the type of Order you are applying for. Typically, the process is as follows:
It depends on the type of Order you are applying for. If the Order is related to P’s finances, the Court will need evidence of their bills, mortgage/rent payments, and any other expenses.
In cases involving the health and/or welfare of P or the deprivation of P’s liberty, the information you may have to give out can be extremely sensitive. As Court of Protection Solicitors, we have the same responsibility as the Court, that is to act in P’s best interests. You can trust that everything you share with us is kept confidential and we will advise you what the Court needs to know and what can be kept private.
Once the application and supporting evidence has been received by the Court, it takes around two to three months for a decision. The entire process for getting Deputyship, including gathering the information together and filling in the form, is around four to six months.
If you think P’s health and/or welfare is in immediate danger, we can help you apply for an urgent Court of Protection Order.
The Court of Protection hearing process varies depending on the type of case and whether it is a first hearing or a hearing where a final order will be made. Typically, the Applicant will explain why they want the Court to make a certain decision. In welfare cases, the Applicant is often a local authority or NHS Trust. In cases involving financial decisions, Deputyships, and Personal Injury Trusts P’s the applicants are P’s family members. The Office of the Public Guardian (OPG) may be the applicant in cases involving suspected abuse of a Lasting Power of Attorney.
Your Solicitor or Barrister can ask questions of the other side’s witnesses. The Judge can also ask questions and have any points of evidence clarified.
If you decide to give evidence, remember we’ll be by your side supporting you. This is not a test and there are no right or wrong answers. The Judge simply wants to get as much information as possible so they can make the right decision that is in P’s best interests.
After all the evidence has been presented and witnesses questioned, both sides’ legal representatives will make closing statements. The Judge may make their decision immediately or take a short break to gather their thoughts.
If at any point you don’t understand what is being said, you can ask the Judge to repeat something. If you don’t feel comfortable, we’ll do this for you.
One if the best things you can do is write down specific things you want to mention. If you are unfamiliar with the Court environment, you may feel nervous. Writing things down will stop you forgetting important points you want to say to the Judge that will help P.
It is vital to understand that everyone has a right to make their own decisions concerning their life. The Court will only intervene if it is necessary and only in situations where P lacks capacity. P may not be able to make decisions in one area of their life but is capable of deciding on other matters.
P has the right to attend the hearing. The Judge will decide if they have capacity to take part. If they don’t, a Litigation Friend or Accredited Legal Representative will be appointed to represent them.
The Judge will look at other ways P can participate. To help them make decisions that are in P’s best interests, the Judge may even visit P.
P also has the right to ask permission to appeal the Court’s decision if they don’t agree with it.
A Court of Protection Solicitor is someone who specialises in Court of Protection law and can advise and represent clients in the Court of Protection.
You can apply to the Court of Protection without a Solicitor. But the process can be complex and confusing. Our Court of Protection Solicitors are experienced, compassionate, and completely dedicated to protecting the best interests of P and supporting family members who are struggling with a loved one whose mental capacity is declining to the point they cannot make certain decisions themselves.
It costs £408 to apply to the Court of Protection and £257 to apply to appeal a decision. You may also need to pay for a Solicitor to advise and represent you.
You can apply to the Court of Protection for help with paying the Court fees. You may also be entitled to Legal Aid to cover part or all of your legal costs, especially if the application concerns P’s welfare or a challenge to a Depravation of Liberty Order.
The OPG is a Government body that helps and protects people who lack capacity to manage their finances. Its responsibilities include:
The Court of Protection and OPG are part of the same process but have separate roles. The Court of Protection makes decisions concerning P and the OPG administers those decisions.
To appeal a Court of Protection decision you must get permission from the Court. If permission is refused, you can ask another judge to hear your application.
If you are unhappy about how the Court handled your case, we can contact them on your behalf.
It’s difficult to talk about our work as anyone who is in the Court of Protection is protected with anonymity because they are usually vulnerable people, but here are a few comments from people we've worked with
"I would like to thank everyone at Simpson Millar for their excellent work, professionalism, kindness and understanding.... I hoped for total support from Simpson Millar when I instructed them, I got so much more. I would highly recommend them and would definitely use them again in the future. Many many thanks again for everything, you were brilliant."
Mrs A
Client
"I have recently completed a 21a challenge with Caroline Hurst. I have known Caroline on a professional basis for a while now. She always goes the extra miles to support the vulnerable to have their rights upheld, and because of her perseverance she manages to get positive outcomes for the people we jointly support. She is friendly, down to earth and very knowledgeable. I will definitely be asking Caroline to work with me on future challenges."
Stephen
Client
The Court of Protection application process takes between four to six months on average. Urgent applications can be made if you believe P’s health and/or welfare are in immediate danger.
A Court Order takes around two to three months but if more information is needed, the process may take longer. If the Court holds a hearing, the Judge may deliver their decision immediately.
In most cases, the Order will last P’s lifetime. But the Court can make one-off decisions, such as banning a certain person from visiting P in their care home.
A Personal Injury Trust is a trust that holds assets brought from the funds of a compensation award for personal injury or medical negligence. When you make a Personal Injury Trust, your settlement is not included in any means testing for state benefits.
Normally, you or another close family member will be appointed as P’s Deputy. The Court can appoint a professional such as a Solicitor if:
A Litigation Friend is someone who is either appointed by the Court or applies to the Court to make decisions on a court case for someone who lacks mental capacity or a child.
Yes, you can apply for an urgent application if P’s health and/or welfare are at immediate risk.
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