A Practitioner’s Guide to the Court of Protection

Description

Navigate the extensive jurisdiction and powers of the Court of Protection. The Court of Protection affects an ever increasing number of people, among whom are some of the most vulnerable members of society. They need the best support and protection that the law and legal profession can provide. A Practitioner’s Guide to the Court of Protection is written by practitioners whose individual and combined experience provide an invaluable guide to the law and practical application. The new Fourth Edition covers both the property and affairs and the welfare parts of the Court’s jurisdiction, with new and expanded chapters covering: It is essential reading for anyone involved in Court of Protection practice including private client practitioners, mental health practitioners, family law practitioners, deputies, local authorities, accountants, Independent Mental Capacity Advocates, Welfare Accredited Legal Representatives, and advocates. Foreword Preface About the Authors Table of Statutes Table of Statutory Instruments Table of International Materials Table of Cases 1 Capacity and best interests Capacity under the Mental Capacity Act 2005 Background The statutory framework of the Mental Capacity Act The core principles of the Mental Capacity Act A logical process A presumption of capacity Capacity is specific to the decision being made Managing property and affairs Further considerations in determining capacity Degree of understanding required for information relevant to the decision Using and weighing information relevant to the decision A person can make an unwise decision Vulnerability and undue influence Assessing capacity Lack of capacity – a diagnostic test Time and duration of capacity Capacity is a legal test Who assesses capacity? The MCA 2005 v common law debate Best interests Approach of the MCA 2005 Determining best interests Avoiding prejudice 2 The Court of Protection Context of the Court of Protection The Mental Capacity Act 2005 Origins of the Court of Protection Terminology The Court of Protection Statutory basis Secondary legislation Practice Directions Status of the Court Judges of the Court of Protection Location of the Court Powers of the Court of Protection Principles the Court must apply Power to make declarations Power to direct reports under s 49 Section 17 powers in relation to P’s welfare Powers in relation to property and affairs Powers in relation to lasting powers of attorney Powers in relation to enduring powers of attorney Problems and complaints Judicial decisions Complaints 3 The Public Guardian and other bodies The Court is not alone The Public Guardian Origin and remit Statutory framework Public Guardian and Office of the Public Guardian Section 49 reports – the Public Guardian Powers of the Public Guardian Statutory powers – general Supervisory powers over deputies Supervisory powers over attorneys Power to set fees Reviews and complaints Court of Protection Visitors Statutory basis Section 49 reports Use of Visitors Authority of Visitors Independent mental capacity advocates The role of the Official Solicitor 4 Practice and procedure in the Court of Protection Nature of proceedings in the Court of Protection The Court of Protection Rules The Rules and Practice Directions Civil Procedure Rules and Family Proceedings Rules Terminology Role of the Court Case management pathways Before issuing proceedings Permission When permission is required Application for permission Making an application – beginning proceedings The role of P in the proceedings Notifying P – where P is not a party Dispensing with notice Objection by P Notice not required – where P is a party Litigation friend The Official Solicitor Rule 1.2 Representatives P’s direct participation Parties, respondents and notified persons Parties to the application Respondents Persons to be given notice Addition and removal of parties by the Court Persons bound as if parties Notices – respondents and persons to be notified Service of documents Service within the jurisdiction Service outside the jurisdiction Responding to an application Subsequent procedure Personal welfare pathway Property and affairs pathway Non-pathway cases Directions Common directions Extension of time for compliance with directions Applications within proceedings (Part 10 procedure) When relevant Procedure Emergencies Considerations for emergency and interim measures Interim measures Security for costs Disclosure of documents Preparing for the final hearing Court bundles Skeleton arguments and position statements Witnesses Cost of preparation for the hearing The hearing Venue Level of judge Privacy and transparency of hearing Conduct of the hearing Evidence Written evidence Witness statements Witness summaries Summoning witnesses Depositions Deposition taken abroad Experts’ reports and section 49 reports Other evidence Routine and subsequent applications Costs of proceedings Reconsideration and appeal Reconsideration of a decision made without a hearing – Rule 13.4 Permission for an appeal Procedure for appeal Extension of time Respondent’s notice Evidence at hearing Appeal hearing Enforcement Powers of enforcement Contempt Procedure Civil restraint orders Ending proceedings Compromise Court has no jurisdiction where P has capacity or has died Application to end proceedings Applications where proceedings have concluded Procedure to be followed when P dies Enduring powers of attorney Registration Notice of objection Further proceedings Lasting powers of attorney Registration Objections to registration Further proceedings International protection of adults Deprivation of liberty 5 The Welfare of P Decisions without Court involvement Doctrine of necessity Statutory protection Who is protected from liability under section 5? What acts are covered by section 5? Statutory limits on section 5 Permissible use of restraint The role of the Independent Mental Capacity Advocate (IMCA) Advance decisions to refuse medical treatment Life sustaining treatment Validity Applicability Health and welfare attorney Scope of decision making Avoiding Court action Decisions with Court involvement The Court’s jurisdiction Welfare deputyship Restriction on the deputy’s authority Residency and contact orders Medical treatment orders Mental heath overlap Excluded mental health decisions Advance decisions and the MHA 1983 Welfare attorneys and deputies Deprivation of liberty What do we mean by ‘deprivation of liberty’? Three fundamental elements The ‘Acid Test’ Obtaining authority under the MCA 2005 Deprivation of liberty in a care home or hospital Deprivation of liberty safeguards Code of Practice Eligibility for DOLs Ineligibility for DOLs Authorisation The relevant person’s representative (RPR) Local review Deprivation of liberty in own home, where deprivation is private Rules and Practice Direction Costs and legal assistance Representation of P Other deprivation of liberty applications Public law interaction Human rights Inherent jurisdiction The Law Commission Summary of recommendations Wider reforms 6 Appointing the deputy The deputy When is a deputy required? What is a deputy? Legal status of deputy Who is the client? Powers of the deputy – general principles Scope of deputy’s authority Limitations on deputy – general principles Deputy can only act where P lacks capacity – and practical problems Who act as deputy Other considerations on choice of deputy P’s wishes and feelings The qualities of the proposed deputy The size and complexity of the estate Personal injury awards Conflicts of interest Family conflict The views of others Convictions and bankruptcy The Deputy’s Declaration Professional appointments Trust corporation as deputy Deputy of last resort Joint and successive appointments Application to appoint a deputy Initial considerations Who makes the application? Application procedure – starting the procedure Application form – COP1 Supporting information forms Property and affairs applications: COP1A Welfare applications: COP1B The capacity certificate – COP3 The practitioner’s fee The Deputy’s Declaration – COP4 Application fee Permission Subsequent procedure Notice to P Dispensing with notice to P Form of notice given to P Notification to friends and relatives Manner of notification Order appointing the deputy Content and scope of a property and affairs order Limitations in the order Limitation in property and affairs deputyship order Content and scope of a welfare deputyship order Interim property and affairs deputy appointment orders The security bond in property and affairs cases Costs Notifying P (again) of final order Reconsideration of order 7 Changing and ending the deputyship Nature of deputy’s role Replacing a deputy Application to replace a deputy Order appointing the new deputy Disputes over the appointment of a new deputy Avoiding disputes – appointing a new deputy is a last resort Ending the deputyship – P ceases to lack capacity Where application is in hand Where deputy already appointed No further involvement of the Court required Ending the deputyship – death of P Costs and remuneration Fees owed to Court and Public Guardian Further costs incurred after the date of death Duties of the personal representative 8 The property and affairs deputy Nature of deputy’s role Property and affairs Deputy as agent and fiduciary The requirements of P – the first consideration P’s welfare and best interests Responsibility of the deputy Duties of the deputy Liability of deputy Conflicts of interest Supervision of deputy Annual report The report for general supervision (OPG102) The report for minimal supervision (OPG103) The report for welfare supervision (OPG104) Professional deputy fees insert (OPG105) Public authority deputy fees insert (OPG106) Professional deputy standards Assurance visits for professional deputies The Court of Protection visitors and lay deputies Release of visitors’ reports Acting in the name of P Financial management The deputyship bank account Money in the control of P Practical difficulties where money is in the control of P Accounting for day–to-day expenditure Out of pocket expenses Remuneration of the deputy Costs of solicitor or other professional Investments The deputy’s powers Existing investments Role of Court of Protection Responsibility of deputy Knowing your client Choosing the right adviser Further issues arising under the Mental Capacity Act Compliance Periodical payments Tax efficient investments Funds in court Court Funds Office Money in Court Operating the Special Account Withdrawal of funds Budget set by Court Statements of account Insurance policies Interest in a business P is a director of a company P is a shareholder Welfare benefits, social care and NHS support Claiming benefits Double recovery for personal injury awards Means-tested benefits Compensation for personal injury Caring for P General considerations Practical duties to P Duties to the Court and the Public Guardian P in a care home Maintenance in P’s own home Repairs and improvements to home Sharing a property – benefit to a third party The empty property Personal possessions Motor vehicles The deputy as employer Income tax The will Importance of examining P’s will Preservation of interest in property – Mental Capacity Act 2005, Sch 2, para 8 P making own will Professional adviser is acting for P P lacks capacity to make a new will Testator is donor of an enduring or lasting power of attorney Interest in an estate or trust P has a beneficial interest P is a discretionary beneficiary P is an executor or personal representative Non-Contentious Probate Rules 1987 Application by person authorised Executor acting under an enduring or lasting power of attorney P is a patron of a benefice 9 Sale and purchase of property Sale of property Preliminary matters Application to sell a property Sale by private treaty Contract for sale Transfer deed Sale by public auction Sale where P is a co-owner Sale to co-owner Purchase of property Application to purchase a property Completion of purchase Purchase of beneficial interest in a property Other dealings with land 10 Trusts and trustees The incapable trustee Replacing the incapable trustee P a trustee of land P has beneficial interest and there is another trustee Trustee Act 1925, s 36 Application to appoint a new trustee under s 36(9) Evidence in support of an application P has beneficial interest in the land and there is no other trustee or there are other trust assets Problem caused by Trustee Act 1925, s 40 Trustee Act 1925, ss 41 and 54 Form of application Where P is sole beneficiary P is a trustee without a beneficial interest Other trustee available No other trustee available Application under s 20(2) of the Trusts of Land and Appointment of Trustees Act 1996 Use of High Court jurisdiction as a last resort Retirement as a trustee Costs Solicitor’s costs Court fee Delegation of powers by an attorney Enduring power of attorney registered prior to 1 March 2001 Enduring power of attorney registered after 1 March 2001 Appointment of second trustee by donee of lasting or enduring power of attorney 11 Litigation in other courts Capacity to conduct proceedings Background Civil Procedure Rules Litigation and the Mental Capacity Act 2005 The litigation friend Who can act as litigation friend Litigation friend appointed by court Court of Protection and litigation friend Compromise of proceedings and final awards Civil Procedure Rules Role of Court of Protection Protected beneficiary Interim payments Extent of court’s powers prior to transfer award Transfer to Court of Protection where party is a protected beneficiary Carry over of funds Statutory charge 12 Gifts and other dispositions of property Legal basis under the Mental Capacity Act 2005 Small gifts – without reference to the Court By attorney under an enduring power of attorney By a donee of a lasting power of attorney By a deputy appointed by the Court of Protection Maintenance and provision Maintenance under an enduring power of attorney Maintenance under a lasting power of attorney Maintenance by deputy Extent of benefit Gratuitous Care Allowances (Family Care Payments) Larger gifts and dispositions – general considerations Statutory and judicial framework The MCA 2005 approach to statutory wills Doing the right thing Ascertaining the wishes of P Written statements Magnetic factors Changes in P’s views and influences Where P’s wishes cannot be ascertained Burden is on the person proving the change Displacing the status quo Each case to be decided on its own merits Other considerations – changes in circumstances Tax planning considerations The interests of beneficiaries The resources of the parties Applications – who may apply Applications – procedure Application forms The application form Annex COP1C Evidence in support – Practice Direction 9E Further evidence in support Capacity evidence Subsequent procedure Parties to the application Service on parties The role of P Subsequent procedure prior to hearing The hearing Emergency applications Reconsideration and appeal Statutory wills Form of the statutory will Safe custody of statutory will Status of the will Effect of sealing Scope of a statutory will Applications for large gifts Applications for settlements When created Special needs trusts Practical considerations Variation of trusts 13 Costs Funding of the Court of Protection and the Public Guardian Court of Protection fees When is a fee payable? No fee payable Multiple applications Who pays the fee? Remission and exemption from fees Disposable capital test Gross monthly income test Public guardian fees Exemptions and remission Solicitors’ costs Costs in proceedings Property and affairs applications Personal welfare applications Apportioning costs Departing from the general rule Solicitor’s costs must be justified Solicitors’ fixed costs Detailed assessment of costs Assessment procedure Basis of assessment Short form bills Amounts charged Specific problems on assessment Costs estimates and the OPG 14 Lasting powers of attorney Introduction Enduring powers of attorney compared Lasting powers of attorney and the Mental Capacity Act 2005 Nature of the lasting power of attorney Advantages of registration prior to use Disadvantages of registration prior to use Scope of lasting power of attorney Personal welfare matters Limits on donee’s powers Principles governing donee’s actions The lasting power of attorney forms Specific issues with the prescribed forms Complying with section 10 of the Mental Capacity Act 2005 More than one attorney Replacement attorneys Restrictions and conditions (instructions) Guidance (preferences) Life-sustaining treatment (welfare power) Persons to be notified of registration Execution by donor Certificate of capacity (Section 10) Who can give a certificate of capacity The donee’s certificate (Section 11) The registration process Objections to registration and cancellation by the public guardian Refusal of Public Guardian to register Objections to Public Guardian on factual grounds Cancellation of registration by Public Guardian Revocation by Court of Protection Grounds for objecting to the registration Powers of the Court after registration Revocation of the LPA by the Court Revocation of the LPA by the donor Directions and Orders Suspending authority of the attorney Powers of Public Guardian after registration 15 Enduring powers of attorney and the Court of Protection Nature of an enduring power of attorney Status of enduring powers of attorney under the Mental Capacity Act What is an enduring power of attorney? Enduring Powers of Attorney and the Mental Capacity Act 2005 Form of an enduring power of attorney Content of the enduring power of attorney The attorney More than one attorney appointed Successive appointments Special conditions on the power Granting the enduring power of attorney Who could give an enduring power of attorney Capacity to grant an EPA Powers and duties of the attorney Generally Power to make gifts and maintain others Duties of the attorney generally Practical duties of the attorney Duties of the attorney on the donor becoming incapable Interim relief Determining validity of EPA Assistance of the Court prior to registration Powers of the attorney during registration period Registration of an enduring power of attorney Making the application – Procedure Notice to donor Notices to relatives Dispensing with notices Original power missing Time limits Subsequent procedure Competing applications No application made by attorney Objections to registration Grounds for objection Procedure on an objection Powers of the Court after registration Procedure Protection of attorney acting under enduring power of attorney Cancellation of registration by Court Role of Public Guardian after registration Cancellation of powers Supervision of attorneys 16 Foreign matters Relevance Assets in England and Wales where P was resident abroad The pre-MCA 2005 position Movable property Immovable property The Hague Convention Domicile and residence Habitual residence Conflicts between jurisdictions Foreign assets of a person resident in England and Wales Court of Protection rules Reciprocal arrangements Northern Ireland Scotland Isle of Man Jersey Curatorships Powers of Representation France Sauvegarde de justice (judicial supervision) Tutelle (Guardianship) and Curatelle (Curatorship) Tutelle Curatelle Mandat de protection future La Fiducie Spain Tutor (Guardianship) and Curador (Curatorship) Tutor Curador Powers of Representation Index