Instanța de Protecție
Capacitatea mintală, procurile durabile, tutela și deciziile de bunăstare.
Introducere
Instanța de Protecție se ocupă de deciziile privind persoanele lipsite de capacitate mintală.
In Brief
The Mental Capacity Act 2005 presumes every adult has capacity unless established otherwise (s.1). Capacity is decision-specific and time-specific. A person lacks capacity if they cannot understand, retain, use/weigh, or communicate the relevant information (ss.2–3). Any decision made for a person lacking capacity must be in their best interests (s.4). Lasting Powers of Attorney (LPAs) for property/finances and health/welfare must be registered with the Office of the Public Guardian before use. Without an LPA, family must apply to the Court of Protection for deputyship.
Principii fundamentale
Presumption of Capacity — Every adult is presumed to have capacity unless established otherwise. Capacity cannot be assumed to be lacking merely because of age, appearance, condition, or behaviour (s.1 MCA 2005).
Decision-Specific Test — Capacity is assessed in relation to the specific decision at the specific time. A person lacks capacity if they cannot understand, retain, use or weigh, or communicate the information relevant to the decision (s.2–3 MCA 2005).
Best Interests — Any act done or decision made under the MCA for a person who lacks capacity must be in their best interests, considering their past and present wishes, beliefs, values, and the views of relevant people (s.4 MCA 2005).
Least Restrictive Option — Before any act is done or decision made, regard must be had to whether the purpose can be achieved in a way less restrictive of the person's rights and freedoms (s.1(6) MCA 2005).
Lasting Powers of Attorney — The donor can appoint attorneys to make decisions about property/finances or health/welfare while they have capacity. LPAs must be registered with the OPG (ss.9–14 MCA 2005).
Deputies — The Court of Protection can appoint deputies to make ongoing decisions for persons who lack capacity. Deputies must act in the person's best interests and report to the OPG (ss.16–21 MCA 2005).
Deprivation of Liberty — Restrictions on a person's freedom that amount to deprivation of liberty require legal authorisation, either through the court or (in care settings) the DoLS/LPS framework.
Statute cheie
Cazuri de referință
Aintree University Hospitals v James
[2013] UKSC 67
P v Cheshire West and Chester Council
[2014] UKSC 19
Re F (Mental Patient: Sterilisation)
[1990] 2 AC 1
Scenarii comune
Parent loses capacity and has no LPA
Family members must apply to the Court of Protection for a deputyship order. The court assesses capacity and appoints a deputy to manage finances and/or welfare decisions.
Dispute about care home placement
If a person lacks capacity to decide where they live, the Court of Protection can make a welfare order determining residence. The court applies the best interests test, considering the person's wishes.
Concerns about attorney misusing funds
Report to the Office of the Public Guardian, which can investigate. The court can revoke the LPA if the attorney is not acting in the person's best interests.
Related Careers
Frequently Asked Questions
What is the difference between a health and welfare LPA and a property and financial affairs LPA?
A property and financial affairs LPA allows your chosen attorney to manage your bank accounts, pay bills, sell property, and deal with financial matters. It can be used while you still have capacity (with your permission) or only once capacity is lost. A health and welfare LPA covers decisions about medical treatment, care arrangements, and daily living — it can only be used once you have lost capacity to make the relevant decision yourself. Both must be registered with the Office of the Public Guardian before use.
How do I prove someone lacks mental capacity in England and Wales?
Capacity is assessed on a decision-specific basis under the Mental Capacity Act 2005. The test has two stages: first, whether there is an impairment of, or disturbance in, the functioning of the mind or brain (s.2 MCA 2005); and second, whether this means the person cannot understand, retain, use or weigh the relevant information, or communicate their decision (s.3 MCA 2005). A formal capacity assessment is usually carried out by a clinician, though solicitors may also assess capacity for legal purposes.
What happens if I lose mental capacity and I haven't made an LPA?
If you lose capacity without a registered LPA in place, no one — not even close family members — has an automatic right to manage your finances or make welfare decisions. A family member or friend would need to apply to the Court of Protection for a deputyship order. This process takes several months, involves court fees and ongoing supervision costs, and gives the court (not you) control over who manages your affairs.
Can the Court of Protection override what a person wants?
Yes, in certain circumstances. The Mental Capacity Act 2005 requires decisions to be made in the best interests of the person who lacks capacity, but crucially this must include considering their past and present wishes, feelings, beliefs, and values (s.4 MCA 2005). The court cannot simply override a person's expressed preferences; their wishes must be given significant weight, and the least restrictive option must always be preferred.
What is a Deprivation of Liberty Safeguard (DoLS) and when does it apply?
A Deprivation of Liberty Safeguard (DoLS) is a legal authorisation required when a person who lacks capacity is placed under continuous supervision and control and is not free to leave a care home or hospital. This follows the Supreme Court decision in P v Cheshire West [2014] UKSC 19. Without authorisation, such restrictions are unlawful under Article 5 of the European Convention on Human Rights. DoLS authorisations are granted by the local authority (supervisory body) and must be reviewed periodically.
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