Understanding mental capacity
Understanding mental capacity

Start this free course now. Just create an account and sign in. Enrol and complete the course for a free statement of participation or digital badge if available.

Free course

Understanding mental capacity

3.3 Legal authority and the courts

The Court of Protection (England and Wales), the Sheriff Court (Scotland) or the High Court (Northern Ireland) are where matters of legal authority ultimately rest when there are concerns or disputes about the financial or welfare matters of people lacking mental capacity. These courts deal with issues of decision making on behalf of someone else where that person is assessed as not having the capacity to represent and manage matters for themselves. 

Watch the video below, which is a brief introduction to the Court of Protection (England and Wales). It is produced by a commercial law firm. It is not presented here as an endorsement of or recommendation for this firm. In the future the default position will be for public not private hearings.

Download this video clip.Video player: A brief Introduction to the Court of Protection (England and Wales)
Skip transcript: A brief Introduction to the Court of Protection (England and Wales)

Transcript: A brief Introduction to the Court of Protection (England and Wales)

What is the court of protection? Who needs it? And what powers does it have? Is it a secret court?
My name is Maria Nicholas. I'm a solicitor and a director at GN Law. I had our court of protection department, and I specialise in mental capacity law.
In this video I'm going to talk about what the court of protection is.
The court of protection determines issues for adults who are considered to lack mental capacity. You can see a separate video on the website about what having mental capacity means, and how to test it.
The court of protection only has jurisdiction, meaning it only has the power to make a decision if it is satisfied that the person in question lacks the requisite capacity. That means that, in turn, that the decision needs to be made on their behalf, in their best interests.
The court deals with a huge variety of cases, ranging from disputes about where it is in a learning disabled person's best interest to live, to what medical treatment an incapacitated person should have, to how to manage a personal injury payment for someone who has been in an accident and suffered a brain injury as a result of that accident.
The court has powers, firstly, to make declarations about capacity in best interests. Secondly, to appoint a deputy to act on someone's behalf. Thirdly, to determine the validity of a lasting power of attorney. Fourthly, to make a statutory will for someone who lacks capacity. And lastly, to resolve disputes between family members, or between a family and the local authority, or NHS as to what is in someone's best interests.
Despite some media representations of it, the court is not a secret one. Hearings are held in private. But that is to protect fundable adults from the sensitive issues that are often discussed in such hearings.
Increasingly, more and more judgments are being made public. And journalists are now allowed to attend more hearings than they were previously.
The cases are usually reported anonymously to protect the individual's privacy.
Please do take a look at the other videos on this site about mental capacity and the court of protection, as they may answer some other queries that you may have. Or call me or one of my colleagues for a free chat to see if we're able to help.
This video is designed to be a brief introduction to the topic that it covers. And we hope you found it useful.
It aims to be informative and to assist people to take the next step in solving the legal problem that they may have.
This video does not constitute legal advice, and does not seek to solve specific legal issues. If you have a specific legal problem that you need solved, you should take expert legal advice from a solicitor.
End transcript: A brief Introduction to the Court of Protection (England and Wales)
A brief Introduction to the Court of Protection (England and Wales)
Interactive feature not available in single page view (see it in standard view).

Certain situations are beyond the remit of family members and local professionals to resolve on their own. The law makes this very clear and courts are authorised to arbitrate and direct options in such circumstances.

Skip Your course resources

Take your learning further

Making the decision to study can be a big step, which is why you'll want a trusted University. The Open University has 50 years’ experience delivering flexible learning and 170,000 students are studying with us right now. Take a look at all Open University courses.

If you are new to University-level study, we offer two introductory routes to our qualifications. You could either choose to start with an Access module, or a module which allows you to count your previous learning towards an Open University qualification. Read our guide on Where to take your learning next for more information.

Not ready for formal University study? Then browse over 1000 free courses on OpenLearn and sign up to our newsletter to hear about new free courses as they are released.

Every year, thousands of students decide to study with The Open University. With over 120 qualifications, we’ve got the right course for you.

Request an Open University prospectus371