Government obliged to provide legal representation for vulnerable people

Senior Associate Solicitor Toby FountaineThe government must ensure people who lack mental capacity have access to independent legal representation in deprivation of liberty hearings, the High Court has ruled.

Mr Justice Charles, sitting in the Court of Protection, delivered the judgment after assessing four test cases where no suitable legal representative could be found for reasons that included resource limitations.

He ruled that all future cases of this sort will be adjourned until a solution is found. This means many cases that concern crucial health and welfare decisions will be left pending until the government, local authorities or the Legal Aid Agency pays for the individuals concerned to be represented in court.

The people for whom this judgment may apply include those living with dementia or Alzheimer’s and people with learning disabilities.

Gaby Hardwicke Senior Associate Solicitor Toby Fountaine (pictured) commented: “Depriving someone of their liberty should and must not be taken lightly, especially where they may not have mental capacity. This judgement is excellent in recognising and highlighting the problems that can occur when vulnerable people do not have legal representation, and goes some way to achieving a position where the vulnerable will be helped. But the lack of funding as this takes effect is likely to cause long delays.

“While the judgement is certainly a step forward, it highlights the importance of making provisions for later life – wills and powers of attorney – while one is still able, and without the need of seeking expensive and time-consuming direction from the Court of Protection.”

Legal help with Court of Protection issues

The Court of Protection makes decisions about welfare and finance for people who cannot make those decisions themselves and in legal terminology ‘lack mental capacity’.

The court can decide whether someone lacks mental capacity to make a particular decision and can appoint a deputy to look after a person’s affairs if they did not put in place a Lasting Power of Attorney (LPA) before losing capacity.

Gaby Hardwicke Senior Associate Solicitor Toby Fountaine leads our team that deals with Court of Protection matters. Contact him at or 01424 730945 for expert help or advice on Court of Protection issues or anything to do with Powers of Attorney.

To learn about our services for older people visit our care for the elderly page. 

Posted: 16 March 2016

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