Court of Protection Secret Court

The Court of Protection – the “Secret Court”

| Published on December 12, 2016

The Court of Protection – the “Secret Court”


The Court of Protection (“COP”), an organisation which makes decisions on financial or welfare matters for people who lack mental capacity to make decisions for themselves, has been criticised for its decision to sentence Mrs Kirk, a grandmother, to six months in jail for refusing to sign a letter authorising British social workers to remove an 80 year old man (“M”) from a care home in Portugal. The decision is available at https://www.bailii.org/ew/cases/EWCOP/2016/42.html.

In 2014, Mrs Kirk took M who lived in England for more than 50 years, to a care home in Portugal. The Local Authority obtained a court order ruling that M lacked “mental capacity” to make decisions about his residence and care due to his vascular dementia. After a series of orders requiring M be returned to England, Mrs Kirk was requested by a Judge to sign a letter to authorise his release from the care home. Mrs Kirk refused and was jailed for six months. Mrs Kirk appealed the decision and was released earlier this month.

The case has led to criticism of the COP due to the high public costs of the proceedings. The earlier judgments do not appear to have been published and the committal decision does not mention if Mrs Kirk had power of attorney over M’s affairs or, if she did, whether that power extended to “health and welfare” decisions.

The option of creating a Lasting Power of Attorney (“LPA”) is likely to avoid COP’s involvement as the person creating the LPA will have considered who they would like to deal with their property and financial affairs and/or health and welfare before they have lost capacity to make decisions for themselves.

If you would like any further information on the preparation, registration and operation of LPAs please contact Humphries Kirk’s Private Client team on 01460 279100.

Abigail Doggrell, Private Client Solicitor at Humphries Kirk.