Family Videos

Date when Video was Published: 23/08/2023

The Court of Protection and Family Matters The Court of Protection ensures the voice of those without mental capacity is not unheard. Capacity means the ability to use and understand information to make a decision and communicate any decision made. If a person is not able to do this, they are deemed to lack capacity. Capacity is presumed unless it is established that the person lacks it by meeting the two stage test under S2(1) of the Mental Capacity Act: • a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter • because of an impairment of, or a disturbance in the functioning of, the mind or brain. Where an individual is assessed as “lacking capacity” they will require the assistance of either a litigant friend or the Official Solicitor to make the overall decision in their best interest and on their behalf. On occasion, parallel applications may be heard alongside one another in both the family court and the court of protection. An example would be where a Local Authority has made an application for a Forced Marriage Protection Order in relation to a person over the age of 16. In these circumstances if the person in lacks capacity then they would not legally be able to consent to any marriage therefore the assistance of the Court of Protection maybe required. In other family proceedings, the Local Authority may make an application for a Deprivation of Liberty Order in relation to a child under the age of 16 alongside a Care Order. In normal circumstances, the Care Order would end when the child reached 16 as would the Deprivation of Liberty Order. However, if the Local Authority believe the order should continue, then an application could be made to continue to deprive their liberty within the Court of Protection. Duncan Lewis Solicitors have specialist solicitors who represent clients in this niche area of law. Please visit our website or call us directly on 033 3772 0409

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