Capacity and Best Interests - How We Can Help

We are able to provide support and advice to individuals, family members and advocates where they disagree with decisions made in a person's best interests and want to challenge the decision/s. We also act in situations where family members are concerned that the procedure set out in the Act is not being followed.

It is important that where people are concerned about their treatment, or that of a family member, they seek legal advice to ensure that the bodies concerned are acting lawfully.

Legal Services - How we can help with decisions made in an individuals best interests

Correspondence and representation

We also assist by corresponding with the responsible authorities to raise concerns about decisions that are being made or need to be made and, if that correspondence does not resolve the concerns, we provide advice about any proposed application to the Court of Protection and make any necessary applications required.

What we can achieve

We secure real benefits for the individuals by:

  • obtaining expert clarification of their capacity to make decisions (which is particularly important in cases involving a person with fluctuating capacity);
  • empowering them to have involvement in their care planning;
  • ensuring that their wishes and views (and those of people who know them well) are taken into consideration when important decisions about their care, residence and contact with others are made;
  • ensuring that care plans are reviewed and adapted to allow the one being cared for to live as independently as possible, and
  • identifying flaws in decision-making practice, including failure to follow the Code of Practice and Social Care Institute for Excellence (SCIE) Guidance.

Paying for legal assistance

Funding from the Legal Aid Agency (known as legal help or public funding) is available for the provision of advice in this area.

The availability of legal aid in this area, is subject to a means test and a merits test. Calculating your entitlement to legal aid can be complicated; if you would like to find out whether you are eligible for legal aid, please feel free to contact us.

Broadly, if you are in receipt of:

  • income support,
  • income-related employment and support allowance,
  • income-based jobseeker's allowance,
  • guarantee pension credit, or
  • universal credit and
  • you do not have savings over £8,000

you will be entitled to legal aid for the purposes of the means test.

If you receive another benefit or have a low income, you may also qualify for legal aid, provided your disposable income is less than £733 per month, but you may have to pay a contribution towards your legal costs. If you have savings over £8,000 you will not qualify.

We are able to calculate whether your income and capital are below the threshold.

If you are not eligible for legal aid please do not worry; we also provide specialist advice, assistance and representation at highly competitive rates on a private fee-paying basis. We may be able to agree a fixed fee for certain work but even if we cannot do so in your particular case, we are happy to discuss the best way to meet your needs.

Our experience

We have a dedicated Court of Protection team which is headed by Julie Cornes and Angela Jackman who are recognised as ''leaders in the field'' and are both highly rated by Chambers & Partners and the Legal 500. The team is comprised of three partners, five solicitors and legally qualified support staff.

We have considerable expertise in representing patients, relatives and advocates (including IMCAs) in best interests proceedings involving decisions about care, residence, contact, sexual relations, marriage, tenancy agreements, holidays and safeguarding issues.

Training and support

We also offer training and ongoing support to various groups, including advocacy, carers and other community groups. From our experience of supporting those organisations, we are aware of the anxiety and uncertainty many advocates, carers and individuals feel about the law in this area, and about taking on the responsibility of being involved in making decisions for their loved ones, or acting as litigation friend.

If you would like to discuss the type of training and support we could offer your organisation, please contact us.

Get in touch...

For further information contact us on freephone: 0808 129 3320 or please complete our online enquiry form.

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Julie Cornes - Education Law and Community Care Solicitor - Simpson Millar LLP - London

Julie Cornes
Partner, Court of Protection (Capacity & Deprivation of Liberty)

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