Declared Incapable As Inherited Property Of The Local Council

An elderly man goes into hospital after a fall. He is confused on admission, and stays confused. Within a fortnight somebody records an assessment concluding he cannot weigh up information about where he should live. A meeting follows.

His daughter, who has washed, fed, and medicated him for six years, is invited, listens, and disagrees.

The decision is written down anyway. He is placed in a home twenty miles away, the tenancy on his flat is ended, and a solicitor he has never met begins managing his building society account for an annual fee.

No offence has been committed. No judge has heard evidence. No court order exists. Every step has been lawful, and most of it happened in meeting rooms.

The daughter now occupies the position British law reserves for relatives of incapacitated adults. She has all of the responsibility and none of the authority. She may be consulted. She may not decide.

If she wants to be heard properly she will need a solicitor, and unlike the council she will pay for one herself.

The Office of the Public Guardian was supervising 61,038 deputyship orders at the end of March 2025, with 9,340,910 lasting and enduring powers of attorney on the register.

In the first quarter of 2026 alone, 11,351 applications were made to the Court of Protection and 14,604 orders were made, an eighteen per cent rise in applications on the same quarter a year earlier. In 2024-25, care homes and hospitals submitted 364,900 applications to deprive people of their liberty.

Somewhere inside those numbers sits a constitutional question nobody in Parliament has been made to answer: when an adult cannot decide something, why does authority pass to the state rather than to the people who know them?

Six Centuries Of Other People's Money

The Crown's claim over incapable subjects is medieval, exercised through the Lord Chancellor and rooted in the prerogative over "idiots and lunatics". By the nineteenth century it had settled into something narrow and financial. Under Parts 3 and 4 of the Lunacy Act 1890, the Judge and Masters in Lunacy held jurisdiction over the property of any person shown to be incapable of managing his affairs through mental infirmity arising from disease or age. A receiver was appointed to run the money. The office of Master in Lunacy survived from 1846 until 1947, when the Lunacy Office acquired its modern name and became the Court of Protection.

The scale grew quietly. Receiverships passed three thousand by 1905, exceeded five thousand in the early 1920s, and peaked in the late 1940s at just over 30,000. One of those cases was Beatrice Alexander, who had not been certified, detained, or hospitalised, and who did not appear to be mentally ill at all. She had simply come to official attention. In July 1939 she was found incapable of managing her affairs and the Official Solicitor was appointed her receiver.

What the old court could not do matters as much as what it could.

Its business was property, investments, and estates. Questions about where a person lived, who visited them, or whether they should be operated on were handled elsewhere, when they were handled at all.

The House of Lords in F v West Berkshire Health Authority in 1990 had to reach for the common law doctrine of necessity to make lawful the sterilisation of a woman unable to consent, because Parliament had left a hole where a welfare jurisdiction should have been. The Enduring Powers of Attorney Act 1985 let people appoint someone to run their finances after losing capacity, and nothing else.

For most of the twentieth century, then, the state took charge of the money and left the person to the family. Care homes, hospitals, and relatives made welfare decisions with no legal authority whatsoever, and the law averted its eyes.

A Good Act With A Bad Court

The Mental Capacity Act 2005 has its basis in Law Commission Report No 231 on Mental Incapacity, published in February 1995, followed by the policy statement Making Decisions in October 1999, a draft Bill in June 2003, and pre-legislative scrutiny by a Joint Committee reporting that November. Nobody rushed it. Everybody who gave evidence agreed the existing position was indefensible.

The Act's purposes were liberal. Capacity would be presumed. Incapacity would attach to a particular decision at a particular moment rather than to a diagnosis. People would be helped to decide before anyone concluded they could not. Unwise decisions would remain the right of the unwise. Intervention would be the least restrictive available.

The Act delivered all of that.

But it also did something else, in the same breath and with far less discussion.

It created a permanent superior court of record with jurisdiction over residence, care, contact, medical treatment, marriage, sexual relations, internet use, property, litigation, gifts, and wills, and it gave public bodies standing to bring any of those questions before it. The welfare hole in English law was not filled by the family. It was filled by a court, a regulator, and the local authority.

Section 1 contains the five principles, and they are good ones. The difficulty is their conditionality. Everything turns on capacity, and capacity is decided by an assessor.

Our Accidental Instrument Of Oppression

Sections 2 and 3 set out the functional test: a person lacks capacity if an impairment of the mind or brain leaves them unable to understand relevant information, retain it, use or weigh it, or communicate a decision.

Three of those four limbs are reasonably observable.

The fourth is not.

"Use or weigh" asks whether somebody has properly processed information they demonstrably understand, and it does the heavy lifting whenever a professional disagrees with an outcome.

A woman who understands the risks of going home, retains them, recites them back accurately, and decides to go home anyway can be found unable to weigh them. The line between a decision the law protects as unwise and a decision the law treats as incapacitous is drawn by whoever writes the report.

The Supreme Court's only detailed examination of the test came in A Local Authority v JB in 2021, concerning a 38-year-old autistic man with impaired cognition, considered to pose a moderate risk of sexual offending, subject to a care package designed to prevent disinhibited behaviour towards women.

The Court held the relevant information includes understanding a partner must be able to consent and must in fact consent, and his inability to grasp this meant he lacked capacity to decide to have sex. The reasoning is careful and the protective instinct is understandable. The result is a civil finding, made without any criminal charge, closing off an area of private life entirely.

Parliament noticed the pattern early.

The House of Lords Select Committee reporting in March 2014 found the Act's empowering ethos had not been delivered, capacity was not always assumed when it should be, and in some cases the safeguards were being "wilfully used to oppress individuals" and force decisions upon them.

A committee of the legislature had described its own creation, twelve years on, as an instrument of oppression. Nothing structural changed.

Sympathy Is Not Legal Standing

Ask most people who decides for an incapacitated adult and they will say the next of kin. The phrase has no meaning in the 2005 Act. Unless a relative holds a valid lasting power of attorney or a deputyship order, being "next of kin" confers no power over decisions, contact, or information sharing.

Section 4(7) requires the decision-maker to consult anyone caring for the person or interested in their welfare. Consultation is not consent. The views of relatives are gathered to help establish what the person themselves would decide, rather than to establish what the relative wants, and the final decision rests on the person's best interests alone.

In practice, a daughter's forty years of knowledge and a social worker's eleven weeks of acquaintance enter the same section of the same form, and the form is completed by the social worker.

A family member may apply to be a deputy. They are not entitled to be one.

Family disagreement is itself frequently the reason a court prefers an independent professional, which produces the awkward position where relatives who fight for someone can be displaced precisely because they fought.

The most consequential provision is the one nobody litigates.

Sections 5 and 6 protect carers and professionals from liability for acts done in connection with care or treatment, where they reasonably believe the person lacks capacity and the act is in their best interests.

This is the legal engine of everyday practice. It authorises washing, feeding, medicating, restraining, moving, and refusing, with no order, no hearing, and no record beyond a care plan.

The Court of Protection handles tens of thousands of matters a year. Section 5 handles millions, invisibly, on the basis of a belief formed by whoever is on shift.

No Capacity To Argue Your Own Capacity

Suppose the family fights, as they might be expected to. The route is harder than it looks. A person may be found to lack capacity to conduct the very proceedings determining their capacity to do anything else.

A litigation friend is appointed, usually the Official Solicitor, who instructs solicitors and runs the case on a best interests basis.

The person's own expressed wishes reach the judge as evidence rather than as instructions.

Losing authority over your life and losing authority over the argument about your life happen at the same hearing.

Money settles the rest. Non-means-tested legal aid is available for challenges under section 21A, which concern deprivation of liberty authorisations in care homes and hospitals. For all other welfare cases legal aid is means-assessed, and the person assessed is P. Relatives wanting representation in their own right are on their own. Councils and NHS trusts are not.

In Local Authority v M in 2014, concerning a 24-year-old autistic man whose parents disputed the council's allegations, a hearing listed for ten days took twenty, with the parents acting in person and the court relaxing its own procedural rules to accommodate them. The judge described the denial of legal aid in such cases as a false economy.

The economy has not been revisited since.

So the applicant is publicly funded, the subject is publicly funded through a stranger, and the family funds itself or stays quiet.

Paid For By Your Own Family Property

Property and affairs deputyship descends directly from receivership, and carries the same basic problem. The protective apparatus is paid for out of the property it protects.

Fees are fixed by soviet Practice Direction 19B.

Professional deputies may take an annual management fee of up to 4.5 per cent of the person's assets where the estate falls below £20,300.

Councils publish their own tariffs.

One lists £944 for the work up to appointment, an annual management fee of £982 in the first year and £824 thereafter, £380 a year for property management, and £274 for preparing the annual report to the Public Guardian, with the Office of the Public Guardian charging a separate supervision fee on top.

For a modest estate, several hundred pounds a year leaves before anything is spent on the person.

The same court can execute a statutory will on someone's behalf, authorise gifts from their money, and approve tax planning in their name.

This is the point where the jurisdiction stops managing a person's affairs and starts speaking as them, deciding what they would have wanted for people they may no longer recognise.

Bournewood, Cheshire West, And A System Which Ate Itself

The liberty question arrived from Strasbourg. HL was an autistic man admitted informally to hospital in 1997, kept there while his carers were prevented from taking him home, and treated by everyone concerned as a compliant patient rather than a detained one. The European Court of Human Rights found in 2004 he had been deprived of his liberty without any of the procedural protection Article 5 requires.

Parliament's answer was the Deprivation of Liberty Safeguards, inserted into the Act by the Mental Health Act 2007 and operative from 2009.

They applied to care homes and hospitals, required councils to authorise confinement, and were disliked from the start. The Lords committee in 2014 found the safeguards were frequently not used when they should be, leaving people without the protection Parliament intended, and concluded the legislation was not fit for purpose.

The Supreme Court in Cheshire West held a person was confined if under continuous supervision and control and not free to leave, regardless of whether the placement was benevolent, homely, or entirely uncontested. A gilded cage was still a cage. The consequence was arithmetical. Hundreds of thousands of ordinary care arrangements became detentions requiring authorisation.

The system never caught up.

In 2024-25 there were 364,900 applications, a backlog of 118,850 uncompleted cases at 31 March 2025, and an average of 126 days to complete an application against a statutory limit of 21 days.

Fifty-eight per cent of applications arrived with an urgent authorisation attached, and just over half of completed applications were closed without any assessment at all.

Roughly 400,000 people were being treated as deprived of their liberty.

The Supreme Court decision was overturned this year in 2026.

What this produced was not protection. It was a queue. People were confined first and assessed later, or confined and never assessed, while the safeguard existed principally as a line in a spreadsheet.

The replacement, meanwhile, never arrived. Round and round and round we go.

The Mental Capacity (Amendment) Act 2019 created Liberty Protection Safeguards. Implementation was postponed repeatedly, and in April 2023 the Government announced a delay beyond the life of that Parliament. On 18 October 2025 a fresh consultation was announced for the first half of 2026, to inform a revised Code of Practice which has not been updated since 2007.

Another Promise The State Couldn't Keep

On 2 June 2026 the Supreme Court resolved the arithmetic by changing the sum. In A Reference by the Attorney General for Northern Ireland, the Court took the rare step of applying the 1966 Practice Statement and departed from Cheshire West, holding the acid test had abandoned the longstanding multifactorial approach to Article 5 and was wrong.

Assessment now requires consideration of the type, duration, effects, and manner of implementation of restrictions, with no single factor determinative. A person may give valid consent to confinement if they are conscious of their environment, have a basic level of understanding, and can express acceptance, even where they lack legal capacity under the Act. The changes applied immediately across the United Kingdom.

Applying the new approach, the Court found MIG and MEG, two of the three people in the original Cheshire West appeals, were not deprived of their liberty at all. It also rejected the earlier majority's policy reasoning, holding the desirability of regular reviews and an independent person charged with pursuing someone's best interests was not a good reason to extend the definition of deprivation of liberty.

The Department of Health and Social Care told the sector the changes were likely to reduce significantly the number of authorisations in the long term.

Mind, Mencap, and the National Autistic Society, who intervened, called it the biggest rollback of disability rights in a generation.

Both descriptions can be accurate simultaneously. Both things are truth at once.

A backlog of 118,850 cases and delays six times the statutory limit were evidence of a promise the state could not keep.

The promise has now been trimmed to fit the resources. Nothing about the underlying jurisdiction was reconsidered. The Court of Protection retains every power it held on 1 June. Fewer people will simply have an independent representative, a review timetable, and a funded route to court while those powers are exercised over them.

Institutional failure produced redesign again. It has never once produced a question about whether the institution should exist in its present form.

Public Hearings, Private Proceedings

Openness followed a similar path. Rule 4.1 of the Court of Protection Rules 2017 states the general rule is proceedings will be in private, while Practice Direction 4C provides the court will ordinarily order attended hearings to be held in public and, in the same order, impose restrictions on what may be published.

Journalists and legal bloggers can attend. Almost nobody can be named.

In Re Gardner (Deceased) in 2025, Sir Stephen Cobb held Court of Protection proceedings remain private by default even where the court directs hearings be held in public, and a direction for a public hearing does not convert them into public proceedings equivalent to ordinary civil litigation. Judges had supposedly erred by importing openness principles from courts which are public by default.

The privacy is defensible in each individual case and corrosive in aggregate.

Individual judgments are read closely by a few hundred specialists. Nobody can measure:

• how often councils lose;
• how often contact with relatives is restricted;
• how long restrictions last;
• how much professional deputies collectively charge, or;
• how many adults ever recover authority over their own affairs.

Volume is published. Conduct is not.

Steven Neary's case shows what visibility is worth. His father asked Hillingdon for a few days of respite care over the New Year of 2009. The council kept him for the rest of 2010, against his wishes and his father's, referring the matter to the Court of Protection only in October.

The court held the council had breached his rights under Article 8 by preventing him living with his father, and under Article 5 by unlawfully depriving him of his liberty. Even during periods when a standard authorisation was in force, because the best interests decisions had been made with insufficient scrutiny of inadequate information.

The judge added it was no answer to say the father could have gone to court himself, since councils enjoy advantages over individuals in experience and in depth of pocket.

That case is famous because it was published. The comparison class is unknown.

What Sensible Countries Ask First

England and Wales are not unusual in having a capacity jurisdiction. They are unusual in how little the family starts with.

Scotland's model still involves a court, a council, and supervision.

The difference lies in the default.

A named individual holds durable authority, and the state supervises them. In England and Wales the state holds the authority and consults the individual.

Councils Refuse Audits. Should They Get Authority Over Your Family By Default?

The Court of Protection was built for good reasons. Before 2007, adults were confined, medicated, moved, and financially stripped by people with no legal authority and no accountability, and the courts had nothing useful to say about it. Anyone arguing for a return to that arrangement is not arguing seriously.

The constitutional issue lies elsewhere, and twenty years of case law has not touched it.

A council may assess a person's needs, determine which are eligible, propose a placement, fund the placement, assess capacity, gather the evidence, apply to the court, argue for its own plan, and monitor the outcome.

Every stage is lawful. At no stage is there an independent check the same authority does not substantially control, and the family which might supply one is unrepresented.

Nobody has to prove a relative did anything wrong before displacing them.

Best interests is a comparative exercise, and a comparative exercise has no threshold. In care proceedings the state must first establish significant harm to a child. Here it needs only a better plan, judged by the people who wrote it.

Restriction has no natural end.

Deputyships persist until somebody applies to end them. Capacity findings persist until somebody funds a challenge. The machinery contains no mechanism for asking itself, unprompted, whether it is still required.

1. Should legal authority over an adult who cannot decide pass first to the person's family, with the state required to prove why displacement is necessary, as it must before removing a child?
2. Should a public body be permitted to assess, fund, commission, and litigate the same decision, or should the applicant and the assessor be separated by law?
3. If Article 5 protections now reach fewer people, what replaces them, given the restrictions themselves have not diminished by a single locked door?

Eight million people have registered a power of attorney rather than leave these questions to be answered later by strangers.

They may not know precisely what they are avoiding, but they have worked out it is worth avoiding in the United Kingdom.