What is the Court of Protection and how do you apply to the Court? Mitra Mann, Senior Associate at Wright Hassall, explains the role of the Court of Protection.

What is the Court of Protection?

The Court of Protection makes decisions on financial or welfare matters for people in England and Wales who ‘lack mental capacity’ and can’t make decisions at the time they need to be made.

The Mental Capacity Act 2005 (MCA) established the new Court of Protection with nominated judges and a regional presence, ensuring that the best interests of the vulnerable person (P) must lie at the core of all decision making, and that P is assumed to have capacity unless it could be proved otherwise.

It should be noted that the Court of Protection is different from the Office of the Public Guardian (OPG). The OPG is responsible for registering powers of attorney and deputyship orders and supervises the activities of the registered attorneys and deputies. The OPG cannot make decisions on behalf of P – this is a matter for the Court of Protection.

The Court of Protection broadly considers the work of its jurisdiction in two streams:

• property and affairs
• welfare

However, there is often an overlap between these two streams.

How do you apply to the Court of Protection?

When considering welfare decisions, attorneys and/or deputies, and anyone else involved in P’s care, should try and resolve welfare issues involving P at a ‘best interests meeting’. Applying to the Court of Protection should be a last resort.

Failing an amicable resolution, applications can be made to the Court of Protection for decisions relating to P’s welfare, such as:

• where P should live
• what care or treatment P should receive
• restrictions on contact and visits
• whether P can get married

Applications are also made to the Court of Protection for the court to appoint a ‘deputy’ (if P has not already appointed an attorney), as well as for applications regarding P’s finances, such as the approval to make gifts or to approve an investment.

It should be noted there are certain decisions, even if P already has an attorney or a deputy, which can only be made by the Court. For example, an attorney or a deputy cannot simply execute a will on behalf of P. An application is required to seek the Court’s approval for the making of a will on behalf of P, known as a statutory will.

How long do applications to the Court of Protection take?

The Court of Protection deals with both contested and non-contested applications and the time it will take to resolve an application with vary depending on which one is made.

Non-contested applications

Most non-contested and straightforward applications, such as deputyship applications, are dealt with on paper without the need for the applicant to attend a hearing. A final order is usually made within four to six months.

Contested applications

Contested applications, which arise when someone objects to an application, will almost always be the subject of a hearing. The court has seen a significant rise in contested applications over the past couple of years, mainly in relation to finances and property. Such applications often concern the validity of a lasting power of attorney, the removal of an attorney or deputy as a result of their misconduct, or disputed terms in a proposed statutory will.

When an application is contested, the court will decide on the best way of dealing with the case fairly and proportionately. Its case management powers include:

• encouraging the parties to co-operate with one another
• identifying the issues at an early stage
• deciding promptly which issues need a full investigation and a hearing

Inevitably, a contested application is more time consuming and can take between six and twelve months, or even more, to resolve.

What does the Court of Protection consider when reaching a decision?

The factors which the court will consider, as set out in section 4 of the MCA, include:

• identifying all relevant circumstances
• considering P’s past and present wishes and feelings, especially any relevant written statement made by P when they had capacity
• the beliefs and values that would be likely to influence P’s decision in question
• any other factors that P would be likely to consider if they were able to do so

The court will also consider the views of those who care for P, are involved in P’s life and the views of their chosen attorney or their deputy. Any decision reached by the Court will be based on the relevant evidence put before it and will be made in P’s best interests.

BP v Surrey County Council & Another [2020]

A recent example of how the Court deals with a contested application is the case of BP v Surrey County Council & Another [2020]. Lockdown and restrictions on visits have been particularly hard for families with relatives in care homes, often causing disagreement. In this case, P’s daughter made an application for her father (P) to move from the care home and live with her as the restrictions made it difficult to maintain contact with P. P has Alzheimer’s, is deaf and struggled making contact via video link. 

The Court looked at all the evidence, including P’s needs and how they are met, and dismissed the daughter’s application since she could not realistically provide 24-hour care to her father on her own.  However, the Court acknowledged the benefits to P to have contact with loved ones and approved the plan which the parties had drawn up to help P maintain as much contact as possible with his family. This included the creative use of a communication board to help P use Skype and the exploration of concurrent instant messaging.

Who pays for Court of Protection proceedings?

Court proceedings are expensive and special provisions are made under The Court of Protection Rules 2017. The general rule relating to property and affairs is that the costs of the proceedings are paid by P or charged to P’s estate. By contrast, in proceedings involving health and welfare, each party bears its own costs; and in the case of joint applications, the costs are apportioned.

The Court does, however, have the discretion to depart from the general rule in certain instances and more recently, the court has made use of this discretion. In 2018, the court awarded costs against the applicant in London Borough of Lambeth v MCS, with the judge ruling that "circumstances of this case are so poor and so extreme (both in relation to institution of proceedings and their subsequent conduct) that I should make an order that the costs of the proceedings should be born [sic] by the Applicant". In another case, JBN PG v DJN [2019], the court again departed from the rule due to failings by the Public Guardian.

Summary

One of the determining features of a civilised society is the way in which it treats its most vulnerable citizens. The five principles of MCA, which guide the work of the Court of Protection, have revolutionised the way in which vulnerable people are treated, restoring their dignity and ensuring that their best interests lie at the core of any decision-making.

The work done by the Court of Protection is more important than ever, not only because of the pandemic, which has affected the vulnerable disproportionately, but also because more people have been made painfully aware of the consequences of not thinking carefully about what might happen if they lose mental capacity in the future. 

About the author

Mitra Mann is a Senior Associate at Wright Hassall who is a specialist in both, contentious probate and contentious court of protection work.

See also

What you need to know about lasting power of attorney (LPA)

Using a caveat to prevent a grant of probate

Simultaneous death: who inherits?

How to make or amend a will during the Coronavirus (COVID-19) lockdown

Find out more

Court of Protection (GOV.UK)

Mental Capacity Act (NHS)

Mental Capacity Act 2005 (Legislation)

The Court of Protection Rules 2017 (Legislation)

Image: Getty Images

Publication date: 5 February 2021

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.