Court of Protection barristers
When someone can no longer make decisions for themselves, families and professionals can disagree about money, care and where they should live. A Court of Protection barrister helps the court reach the right decision.
What the Court of Protection does
The Court of Protection makes decisions for adults who lack capacity to make a particular decision themselves, under the Mental Capacity Act 2005. It decides whether a person has capacity, appoints deputies to manage property and financial affairs or health and welfare, and decides disputes about what is in the person's best interests.
Most applications, such as a straightforward property and affairs deputyship, are dealt with on paper and never need a barrister. Counsel becomes important when the application is contested, when large sums or complex assets are involved, when there are allegations of financial abuse, or when the decision concerns serious medical treatment, care arrangements or a deprivation of liberty.
Court of Protection work sits at the meeting point of family, private client and public law. The barristers on our panel who do it are used to sensitive, emotionally charged cases where relatives, care providers, the local authority and sometimes the Official Solicitor all have a voice.
Where a Court of Protection barrister can help
Contested deputyship
Disputes between family members over who should be deputy, objections to a professional deputy, and applications to remove a deputy.
Statutory wills and gifts
Applications to make or change a will, or approve large gifts and tax planning, for a person who lacks testamentary capacity. These often involve substantial estates.
LPA disputes
Objections to registering a lasting power of attorney, and applications to revoke an LPA where an attorney is not acting properly.
Financial abuse
Investigating and recovering money taken by attorneys, deputies or others, often alongside OPG investigations.
Health and welfare
Disputes about where someone should live, contact with family, care packages and serious medical treatment.
Deprivation of liberty
Section 21A challenges to standard authorisations and community deprivation of liberty applications.
How contested Court of Protection cases run
A contested case usually starts with an application on form COP1, supported by a capacity assessment and witness statements. People who must be notified, including close family, can respond and ask to be joined as parties. The court then gives directions, which may include further capacity evidence from an independent expert, statements, and a round table meeting to narrow the issues.
Many cases settle at that stage, once the evidence is in and each side can see the likely outcome. Those that do not proceed to a final hearing before a district judge, circuit judge or, in serious cases, a High Court judge. Counsel prepares position statements, questions the experts and makes submissions on capacity and best interests.
The person at the centre of the case is often represented by the Official Solicitor or an accredited legal representative. A barrister acting for a family member will need to engage constructively with them, since their view carries real weight with the court.
Who pays, and what counsel costs
In property and affairs cases, the general rule is that costs are paid from the estate of the person concerned. In health and welfare cases, the general rule is that each party pays its own costs. The court can depart from both rules, for example where a party behaves unreasonably, so it is important to conduct the case carefully.
Written advice from experienced counsel typically starts from around £1,000 to £2,500 plus VAT. Attendance at a directions hearing usually starts from around £1,000, and a one-day final hearing from around £2,500 plus VAT for experienced junior counsel, more for statutory wills over substantial estates or serious medical treatment cases. Fees include preparation and are agreed in writing first.
Instructing a Court of Protection barrister
Family members, deputies and attorneys can instruct a Court of Protection barrister directly under the Public Access scheme for advice and hearings. Professional deputies, solicitors and local authorities can instruct in the usual way. Tell us who the person is, what decision is in dispute and any hearing dates, and we will check availability across the panel and send you a written fee.
Clerk & Counsel is an intermediary and clerking service. Panel barristers are independent, regulated by the Bar Standards Board and responsible for the advice and representation they provide.
Common questions
Do I need a barrister to apply to be a deputy?
Usually not, if no one objects. Counsel is most useful when the application is contested, involves large or complex assets, or raises questions about how an attorney or deputy has acted.
Who pays for a Court of Protection barrister?
In financial cases costs are normally paid from the person's estate; in welfare cases each party usually pays their own. The court can order otherwise if someone behaves unreasonably.
Can a barrister help with a statutory will?
Yes. Statutory will applications are a common instruction, particularly for larger estates where tax planning or family provision is involved.
What can I do if I think an attorney is misusing money?
You can raise concerns with the Office of the Public Guardian and apply to the Court of Protection to revoke the LPA and appoint a deputy. A barrister can advise on evidence and recovery.
How much does a Court of Protection barrister cost?
Directions hearings usually start from around £1,000 and a one-day final hearing from around £2,500 plus VAT for experienced junior counsel, including preparation. Fees are agreed in writing first.
Clerk & Counsel is an intermediary and clerking service. We do not provide legal advice or legal representation. Barristers instructed through Clerk & Counsel are independent legal professionals regulated by the Bar Standards Board and are responsible for the legal services they provide. It is free to submit an enquiry; if you instruct a barrister through us, our service fee of up to £150 depending on urgency is shown separately from the barrister's professional fee before you decide.
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