Understanding the Court of Protection with Solicitor Sarah O’Sullivan

Sarah specialises in mental capacity law, and in this conversation she explains how the court helps people who can no longer make important decisions for themselves, from managing finances to safeguarding their welfare.

“The whole remit of the Court of Protection is to protect the vulnerable in our society,” explains Sarah. “It steps in when someone can’t make their own decisions and there’s no power of attorney in place.”

 

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What is the Court of Protection?

As Sarah explains, the Court of Protection is part of the courts of England and Wales. Its purpose is to make decisions for people who lack mental capacity and do not have a valid Lasting Power of Attorney (LPA).

Where a power of attorney allows someone to choose who makes decisions on their behalf, the Court of Protection steps in when no such arrangement exists.

“If a person can make a power of attorney, it’s always the best way forward because it gives them that freedom of choice,” says Sarah. “If not, the court decides who is best placed to look after that person’s affairs.”

 

What does ‘best interests’ mean?

Every decision made by the Court of Protection must be in the person’s best interests, a principle set out in the Mental Capacity Act 2005.

This means considering not just someone’s safety and wellbeing but also their personality, beliefs, culture, and wishes. Sarah highlights that these decisions should always reflect the individual, not just their needs.

“Best interests means ensuring someone’s care, living arrangements, and finances all align with what they would want if they could decide for themselves,” she explains.

 

LPA or Deputyship: what’s the difference?

Many families are unsure whether to arrange a Lasting Power of Attorney or apply to the court for Deputyship. Sarah makes the distinction clear:

• An LPA is created voluntarily by someone with mental capacity, allowing them to choose who acts for them.
• A Deputyship is granted by the Court of Protection when someone has already lost capacity and can no longer make an LPA.

The key difference lies in control and timing. A person with capacity can choose their own attorneys, while the court appoints deputies when no such plan exists.

 

Changing or making a will

If someone has lost mental capacity, they can no longer make or amend a will themselves. In certain cases, the Court of Protection can approve a statutory will on their behalf.

Sarah explains, “Someone else can’t simply make a will for another person. It must go to the court for approval to ensure it truly reflects their best interests.”

 

How the Court supervises deputies

Financial deputies must account for every decision they make. The Office of the Public Guardian (OPG) supervises their work through annual reports that track spending, decisions, and outcomes for the vulnerable person involved.

If something looks concerning, the OPG can ask for clarification or refer the matter back to the court. Sarah stresses that most issues arise from misunderstanding rather than misconduct, but transparency is essential to maintain trust and accountability.

 

What if an attorney or deputy isn’t acting properly?

If there are concerns about how an attorney or deputy is handling someone’s affairs, Sarah recommends contacting the Office of the Public Guardian. Families can also reach out to Adult Social Care or even the police if there is evidence of abuse or exploitation.

“The OPG has the power to investigate,” says Sarah. “If someone is worried about a vulnerable person, the best thing to do is report it. Keeping clear records helps protect everyone involved.”

 

Common myths and practical advice

One of the biggest misconceptions, Sarah notes, is that families always need a personal welfare deputyship to make decisions about a loved one’s care. In reality, many decisions can be made under best interests without formal court involvement.

Her advice for families is simple:

• Don’t assume someone lacks capacity without proper assessment
• Explore making an LPA as early as possible
• Get specialist legal advice before applying to the Court of Protection

“Even if someone has started to struggle with memory or daily decisions,” she adds, “they might still have the capacity to make a power of attorney. It’s always worth checking.”

 

Final reflections

Luca closes the episode by thanking Sarah for her clear and practical insights. Their discussion highlights how understanding the Court of Protection can help families plan ahead, make informed choices, and protect their loved ones’ futures with confidence.

For further guidance on arranging live-in care, financial planning, or understanding your options, explore our Care Guides or learn more about our Live-in Care Services by calling 0345 125 8975.