Jess Flanagan

Jess is a Partner in the Private Capital team specialising in Welfare Proceedings in the Court of Protection and Community Care matters.

Jess’ expertise includes residence, care and contact disputes that may arise between private individuals and public authorities concerning an individual who lacks the mental capacity to make important welfare decisions themselves. Jess is also experienced in bringing applications under Section 21A Mental Capacity Act 2005 in connection with the Deprivation of Liberty Safeguards (DoLS) framework. The DoLS framework applies when someone is placed in a care home or hospital and cannot consent to being there themselves, due to not having the capacity to do so. A challenge can be brought in the Court of Protection by anyone connected with the person deprived of his or her liberty but in order to benefit from non means tested legal aid, the case must be brought by the individual or by their Relevant Person’s Representative. Jess also advises on community based deprivation of liberty applications.

Jess is regularly instructed by family members, or to act on behalf of the person who lacks capacity by a litigation friend, including the Official Solicitor and can, if appropriate, assist in applying for legal aid should the applicant be eligible on means and on the merits of the case. As an Accredited Legal Representative, Jess is also able to represent the vulnerable adult directly, in certain types of applications before the Court of Protection.

Jess has specialist knowledge of Safeguarding procedure, Community Care law and Mental Health Act 1983, including representation of detained patients in the Mental Health Review Tribunal. She works with the housing management team on cases where tenants lack capacity to manage their tenancy.

Jess joined Clarke Willmott LLP in February 2013 after training and working as a Solicitor at Swain & Co Solicitors, introducing and developing Court of Protection work at that firm and the team now includes two qualified solicitors, paralegal and assistant serving clients in the South, South West and South Wales.

Jess is a Law Society Accredited Legal Representative and former Chair of the South West Regional Court of Protection Practitioners Association (CoPPA) and is frequently asked to write and speak on issues related to the Mental Capacity Act 2005.

Experience

• Jess represented four adults in the High Court case of RD and Others (Duties and Powers of Relevant Person’s Representatives and Section 39D IMCAs) [2016] EWCOP 49 where guidance was given by the court as to when an RPR and s39D IMCA is required to bring a challenge to the DOLS Authorisation in the Court of Protection.
• Jess represented P in the case of DMM (Alzheimer’s : marriage : power of attorney ) [2017] EWCOP 33 concerning capacity to marry and the case of PBM [2019] EWCOP 6 concerning capacity to marry, capacity to enter into a prenuptial agreement and capacity to know the value of P’s estate.
• Successfully applying to the Court of Protection to re-instate contact between a mother and her adult son after contact had been unilaterally stopped by his step mother and father.
• Successfully challenging a Local Authority decision to remove a young adult with severe learning and communication difficulties from the care of his Father using the Deprivation of Liberty Safeguards (DOLS). The Judge decided that it was in his best interests to live with his father and to access respite twice a week.
• Representing Relevant Person’s Representative under the DOLS framework in successfully arguing that her brother, who was deprived of his liberty under the framework, had capacity to make decisions relating to his care and treatment and where and how this should be received, himself.
• Jess is currently instructed by the Official Solicitor in respect of complex proceedings concerning P’s capacity to consent to sexual relations.