The Court of Protection

On the 14 October 2016, The Daily Telegraph reported:

“Grandmother, 71, sent to top security jail after refusing council’s demands over care”

The article contained details of a 71-year-old lady who was sent to a maximum security prison for six months by the Court of Protection.  The facts: 

  • The lady and her brother were originally from Portugal.  
  • Her brother aged 81 years old had lived in the UK for 50 years. 
  • He was living on his own in his house in Devon when he was diagnosed with vascular dementia.  
  • In 2014 his sister moved him to live in her small home in Sussex.  She sold his house and used the money to buy a larger property.
  • One of his neighbours alerted Devon county council to the move and social services became involved.  
  • In April 2015 a social worker recommended that the man should be brought back to Devon to live in a care home, and a judge ruled that he did not have the mental capacity to make decisions for himself.
  • The council obtained a court order freezing his assets, including the house.
  • In the same month his sister decided to take him to Portugal, where he was hospitalised because of his dementia and moved into a care home.

In a series of court hearings, Devon county council successfully claimed that the court should declare the man mentally incompetent, and a Court of Protection judge ordered his sister to sign papers authorising his return to the UK.  She refused to sign the papers.  Whilst she had not broken any laws in taking the man back to his native country, she was in contempt of court for failing to comply with the court orders.  This sister claimed that her brother wanted to stay in Portugal, but the Court of Protection found her in contempt of court and imposed a six-month jail sentence. 

Unsurprisingly, the case divided opinion, for some the court were wrong to interfere in family affairs, for others the court was right to protect the interests of the brother.  On the facts as we know them, the brother was incapable of making his own decisions, he had lived in the UK for a very long time.  Why had his sister sold his house?  She had benefited by purchasing a larger property to live in herself and shipping her brother off to Portugal.    

The Court of Protection’s role is to protect the interests of individuals who are unable to make decisions for themselves.  But was the court or the sister in the best position to decide what was in his best interests?  

Unless you choose and appoint an attorney to act on your behalf if you lose capacity, the Court of Protection will step in if asked to do so, and make decisions about your finances or for your health and welfare or appoint someone to act as your deputy.  If you would rather not leave it to a Court to decide who should act in your best interests, you can appoint the attorney(s) of your choice to act on your behalf.  To do so you will complete a document called a Lasting Power of Attorney (LPA).  There are two kinds of LPA, one to appoint an attorney to look after your finances, and the other to appoint an attorney to look after your health and welfare.  

If you would like more information about the Court of Protection or appointing an attorney contact us at