Legal Services

1. When to Request Legal Services

When a request must be made

A request for legal services support should always be made when:

  1. A Health and Welfare application is to be made to the Court of Protection;
  2. An application is to be made to the High Court;
  3. Another person or organisation has made an application to Court;
  4. You receive a letter stating that another person is going to make an application to Court;
  5. A report or paper is being prepared that requires legal comments.

A request should also be made for Property and Financial Affairs applications to the Court of Protection when this application is not to be managed by a dedicated Deputyship service.

When a request can be made

Decision making

The advice and guidance of legal services can be helpful to support robust and legal decision making when:

  1. The decision to be made is complex; and
  2. There are a range of options available; and
  3. It is not clear from legislation, codes of practice or any other available guidance what decision should be made; and
  4. The decision is likely to have a significant impact on a person or carer; and
  5. There is a high risk of complaint or legal challenge.

Decisions could be those under:

  1. The Care Act (including Safeguarding);
  2. The Mental Capacity Act (including DoLS); or
  3. The Mental Health Act 1983.

They could be decisions about:

  1. Eligibility for adult Care and Support;
  2. Indicative or final Personal Budgets;
  3. Ordinary residence;
  4. Withdrawal of refusal of a Direct Payment;
  5. What is in a person's Best Interests (including where they should live);
  6. Whether a person lacks capacity;
  7. The action that should/should not be taken to safeguard a person;
  8. Whether an application to the Court of Protection should be made;
  9. Whether a person is being deprived of their liberty;
  10. Whether any of a person’s other human rights, such as the right to private and family life are being interfered with, and the action to be taken.

Complaints and investigations

Whilst legal advice should not be sought as a matter of course, it can be helpful to seek the support of legal services in complex complaints or investigations, particularly when:

  1. Statutory processes and duties are being challenged; and
  2. There are legal implications for the outcome of the complaint or investigation.

2. Requesting Legal Services

You should discuss legal services with your line manager as soon as you have reason to believe that it is required.

You should proceed to make a request for legal services as soon as possible after you have agreement to do so.

All requests should be made in line with available local processes and guidance.

3. The Role of Legal Services in Court Applications

In Court applications it is the role of legal services to manage and co-ordinate:

  1. The application process;
  2. Any correspondence to or from the Court;
  3. How and when evidence is provided;
  4. How evidence is organised and submitted to the Court;
  5. How others are involved in the process, including how tasks may be delegated.

It is also important that they support you in your role, which includes:

  1. Developing your understanding of Court processes;
  2. Supporting you to evaluate the robustness of the evidence you provide;
  3. Advising you about how to complete various court forms appropriately; and
  4. Supporting you during any oral hearings.

To support legal services in their role you should:

  1. Keep legal services aware of any changes in a matter where they are already involved;
  2. Complete witness statements promptly and before any specified deadline;
  3. Provide up to date information when requested;
  4. Submit evidence to legal services in advance of deadlines so that legal services can offer advice and guidance;
  5. Review statements and sign them when requested by legal services. Legal services cannot submit evidence that is unsigned;
  6. Attend court hearings unless advised otherwise.