Disputes and Litigation in the Court of Protection

Common disputes include contested deputyship applications where multiple family members want to be appointed, challenges to deputies for alleged misconduct or breach of duties, and disagreements about financial management or asset use for people lacking capacity.

Welfare disputes involve disagreements about care placements, medical treatment, contact arrangements, or living situations. Disputes about Statutory Wills or lifetime gifts also arise. Many cases involve family conflicts about what’s in vulnerable people’s best interests when family members have different views.

Yes, interested parties can challenge deputies’ decisions by applying to court. The court reviews whether deputies acted within their authority and in the person’s best interests. Deputies who breach duties face removal, orders reversing transactions, or personal liability for losses.

Applications to challenge deputies require evidence of misconduct or breach of duty. The Office of the Public Guardian investigates complaints about deputies and can refer matters to court. Minor disagreements don’t usually justify court applications, but serious breaches or financial mismanagement warrant court intervention.

When family members disagree about care arrangements, medical treatment, or living situations for people lacking capacity, the Court of Protection decides based on best interests. The court appoints independent experts to assess capacity and advise on best interests.

The Official Solicitor often represents vulnerable people in contested welfare cases ensuring their interests are independently protected. The court considers the person’s wishes and feelings where ascertainable, medical evidence, family views, and practical considerations. These cases are sensitive and emotionally difficult for families.

When multiple people apply for deputyship or someone objects to a proposed deputy, the court determines who is most suitable. The court considers relationship to the person lacking capacity, suitability to manage affairs, conflicts of interest, and the person’s wishes if ascertainable.

Sometimes joint deputies are appointed to manage disagreements. Other times the court chooses one applicant or appoints a professional deputy. The paramount consideration is the vulnerable person’s best interests. These applications are more expensive and time-consuming than uncontested cases.

The Official Solicitor represents people lacking capacity in contested Court of Protection proceedings where there’s no one suitable to act as litigation friend. The Official Solicitor ensures vulnerable people’s interests are independently represented and protected in complex disputes.

The Official Solicitor investigates cases thoroughly, instructs experts, and presents the vulnerable person’s position to court. Having the Official Solicitor involved increases case complexity and costs but ensures proper independent representation. Courts often direct Official Solicitor involvement in serious or contested welfare cases.

Deputies can be removed for breach of duty, misconduct, unsuitability, or inability to act. Applications to remove deputies require strong evidence of serious failure. Minor errors or family disagreements don’t automatically justify removal, but financial mismanagement, abuse of position, or serious breaches may warrant removal.

The court can appoint new deputies, order deputies to account for their actions, reverse transactions, or make deputies personally liable for losses. The Office of the Public Guardian supervises deputies and refers serious concerns to court. Removing deputies is serious and requires court proceedings.

Contested Court of Protection proceedings are usually very expensive. Costs for contested proceedings in the Court of Protection depend on the nature and complexity of the dispute, and how long it takes from issue to a final hearing. We’ll discuss likely costs with you at the outset and keep you informed at each stage.

Cases involving the Official Solicitor incur additional costs. The court can order parties to pay costs from the vulnerable person’s estate if appropriate. However, unsuccessful parties may face adverse costs orders. We provide detailed cost estimates and advice on funding options including public funding in some welfare cases and a client’s exposure to paying adverse costs and inability to recover from the vulnerable person’s estate where relevant.