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The Court of Protection in Action: A Family Lawyer's Primer

Moira Sofaer looks at the fundamental purpose, procedures and people involved in the Court of Protection. This article is a companion piece to Moira's recent article on the Mental Capacity Act.

image of moira sofaer, barrister, 1 mitre court buildings

Moira Sofaer, Barrister, 1 Mitre Court Buildings 

Since October 2008 a whole new arena of decision making concerning a vulnerable person’s (P) welfare was opened up by Section 17 of the Mental Capacity Act (MCA). It extends to

(a) deciding where P is going to live
(b) deciding what contact if any P is to have with any specified person
(c) making an order prohibiting a named person from having contact with P
(d) giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P
(e) giving a direction that a person responsible for P’s health care allow a different person to take over that responsibility

Welfare cases are particularly suitable for family practitioners with the evidence gathering around a single issue to be determined at a final hearing. After the judgement the lawyers quit the scene to let the parties get on without them.  
The nature of welfare decisions means that the court prefers to make single orders under Section 16 (4). When there is a time limit to the decision making, for instance a decision as to where an incapacitated person (P) is going to live, such one-off orders have the benefit of being less intrusive, cheaper and more efficient than the appointment of a welfare deputy. Judges have been turning down 70% of applications for permission to become a welfare deputy The principles that i) the decision of the court is better than the appointment of a deputy and ii) a deputy’s powers should be as limited in scope and duration as is practical in the circumstances, are applied when deciding whether to appoint one. Single court orders avoid a deputy being put in place for years.

The deputy option is suitable where there is a need for continuing decision making, for instance with a younger P with a developmental disability that requires a deputy to provide an annual account. It is not an area family practitioners will be comfortable dealing with.

Powers in relation to property and affairs are contained in Section 18 MCA and are similar to those given to the courts predecessor. This area falls within the expertise of trust lawyers although family practitioners need to be aware of the court’s powers to advise families on how to deal with the overall picture and work together with the financial advisers or a professional deputy.

Decisions can be made about:

(a) the control and management of P’s property
(b) the sale, exchange, charging, gift or other disposition of P’s property
(c) the acquisition of property in P’s name or on P’s behalf
Important powers when the decision is where and how P is to live.

(d) the carrying on, on P’s behalf of any profession,. trade or business
(e) the taking of a decision which will have the effect of dissolving a partnership of which P is a member
This affects P’s income for future maintenance

(f) the carrying on of any contract entered into by P
(g) the discharge of P’s debts and obligations
(h) the settlement of P’s property
(i) the execution for P of a will
Important if the current arrangement is non tax efficient or there is no will at all

(j) exercising any power vested in P under a trust
(k) Conducting litigation for P which might include for example legal representation in divorce proceedings

Other agencies work together with the court to assist its decision-making. 

1. The Office of the Public Guardian (OPG)
The OPG was the twin body created at the same time as the Court. It comes into play with the court when abuse is alleged and can liaise with agencies and individuals including social services, police, voluntary organisations and adult protection committees. Work is in progress to establish an investigation unit.

The OPG has powers to obtain information and can:

If, after an investigation, the OPG “considers it necessary or appropriate to do so “ (CofP  Rule 43), an application must be made to the Court and the OPG  becomes a party.

P could, before incapacity, have appointed an ADM as a donee under a lasting power of attorney (LPA) or one can be  appointed by the court on application after incapacity  as a deputy. Both types are supervised and regulated by the OPG.

Section 58 MCA gives it the power to

When monitoring, supporting and advising ADMs, the OPG is in a unique position to identify and deal with exploitation and abuse.

2. The Official Solicitor (OS)
In proceedings before the Court, the OS is often asked to act as a litigation friend for P whose interests might otherwise not be fully represented. This is useful when a potential conflict emerges between P and his deputy and in contentious welfare cases. The “best interest” core principle has to be applied by the court. The OS ensures P’s best interests are not overlooked due to P’s inability to put them forward. At the directions hearing it can be considered whether P should be joined as a party and, if so, whether the OS should be appointed to provide an independent source of representation or whether some other person can be appointed for instance a competent friend, family member or solicitor. Enquiries can be made at an early stage with the OS staff if there is a query as to whether the OS should be involved. The OS can also advise the Court on its powers and procedures, liaise with parties to clarify issues and assist at arriving at a consensus between the parties

3. Court of Protection Visitors
The Lord Chancellor appoints them and their role is an important one. P may have no family or friends to report problems to the Court. They gather information needed for P’s welfare and running P’s financial affairs.

The Act provides for panels with two types:

By Section 49, the Court can direct them to report. They have a right to access information and interview P in private by Sections 49 and 61. They can carry out a private medical, psychiatric or psychological examination of P’s capacity and condition then report directly to the court.

4. Independent Mental Capacity Advocates
When P has no one else to provide advice and assistance they can be appointed at the Court’s discretion in situations where:

The Act, by Sections 34-41, set up the service to increase the possibility of P’s involvement and best interests being promoted. It is currently funded by the NHS and local authorities. P’s needs may require funding from scarce resources which can lead to a conflict.

Costs and Financing the Court
The Court is expected to be financed by 63% of the fees it collects. Since 2000, the fees fluctuate each year to raise the maximum revenue.  Currently the application fee is £400; there is a hearing fee of £500 and an appeal fee of £400. The applicant pays the fee although means testing for the applicant or P can lead to no costs being payable.

When a case deals with P’s property and finances and the application is made in good faith, supported by medical evidence, in P’s interests and without improper motive, then P’s estate pays even if the application is unsuccessful (r156, C of P Rules)

Applications concerning P’s personal welfare are governed by a general rule r157 that there is no order for costs as the parties are often public bodies, for instance local authorities. Therefore professional advisors should ask for a direction dealing with professional fees or risk being out of pocket.

Cost orders against a party, which are a departure from the normal order, can be made under r159 after consideration has been given to:

The court tries to avoid such orders as they do involve an allocation of blame. In essence a properly motivated applicant conducting the proceedings efficiently will not be at risk on costs.

The new legal system for vulnerable adults has been up and running for a year. Drawbacks that have come to light in practice have led to revisions. In October 2009, for instance, the lengthy LPA forms have been replaced by shorter ones. Consultations on drafting the MCA included academics, care providers, legal professionals, other jurisdictions and politicians before it came into effect. There is constant feedback on how it is operating; it’s an experiment that is being watched and tweaked. Court users have to keep up with its reforms and changes, so watch this space.