This article is a general guide for the Court of Protection (COP). The COP for England and Wales can be at the Royal Courts of Justice in London or at a county court. It was created under the Mental Capacity Act 2005 and also has to consider the Human Rights Act 1998.
The Court can decide whether a person has the ability to make their own decision at the time it needs to be made. This is called ‘capacity’ and if someone cannot make their own decisions, they lack capacity. The Court can also make decisions for someone who lacks capacity. This is called making a best interests decision. The Court cannot make decisions on behalf of someone who has capacity.
Both matters of finance and welfare are dealt with by the Court of Protection (COP).
Who can apply to the COP?
You can apply to the Court if you are an Attorney or Deputy. Anyone named in a court order relating to the matter could also apply, without needing permission. The Court can also appoint a lay or professional deputy for someone who lacks capacity and doesn’t have a Power of Attorney.
If you have a question that the Court has the authority to decide you can apply to the Court. You don’t need permission to do this if you are the person the Court is going to make a decision about and you are over 18 years old.
It is not necessary to have a solicitor to go to the Court. It is possible to act as a litigant in person and represent yourself. If you do want a solicitor, the Law Society has a Find a Solicitor section that deal with the COP or you can Google to find a specialist solicitor.
There is a very helpful electronic handbook called A Basic Guide to the Court of Protection. This has been created for free by experienced Court of Protection lawyers.
Responsibilities and Powers
The Court is responsible for:
- deciding whether someone has the mental capacity to make a particular decision at the time they need to make it.
- giving people permission to make a one-off decision on behalf of a vulnerable loved one who lacks mental capacity.
- making decisions about an Enduring Power of Attorney or a Lasting Power of Attorney. In addition, considering any objections to their registration.
- handling urgent or emergency applications where there is a time limit on a decision that needs to be made.
- making decisions about when someone can be deprived of their liberty under the Mental Capacity Act.
- considering applications to make statutory wills or gifts.
COP Fees
The fees are contained in COP44
Fees payable from 30 September 2021:
- Application fee – £408: payable on making an application to start court proceedings or on making an application for permission to start proceedings
- Appeal fee – £257: payable on filing an appellant’s notice appealing a court decision or seeking permission to appeal a court decision
- Hearing fee – £494: payable where the court has held a hearing to decide the application and has made a final order, declaration or decision
- Copy of document fee – £5: payable on requesting a copy of a document filed during court proceedings
Court Deputy
The Court can appoint a COP Deputy who is either a lay or professional Deputy. In the event that the vulnerable person has not appointed a Power of Attorney and they have lost capacity, a family member, a solicitor or the local authority can apply to the Court to be appointed as a Deputy.
How long does it take?
Applying to the COP can take months, it is not a quick process. To get a COP order can vary depending on the complexity of the case and statutory notifications. Straightforward cases can take between 4-6 months. Complex cases can take over a year. Cases can be expedited if they are or become urgent.
Office of the Public Guardian (OPG)
The OPG deals with the administration of Attorneys and Deputies and sometimes needs to take cases to the Court of Protection. It can take only cases on the matter of the discharge or conduct of an Attorney or Deputy.
Litigant in person
You can represent yourself as a litigant in person (LIP) but you would be advised to make sure you have done your homework. There are organisations that can help if you are a LIP, such as Citizen’s Advice, and there is some useful information from the Law Society and the Courts and Tribunals Judiciary.
If you are an LIP and you are unsuccessful or don’t understand the process, you run the risk of having costs awarded against you. You may have to pay the other side’s costs as well as your own. There is a good example of an applicant who was a friend of the vulnerable person in question, who ended up with a bill for £6,000 including VAT. See the blog post from Open Justice Court of Protection 10 August 2022.
Families and carers’ disputes
The Court can also help sort out disputes. This may be when other family members or a carer disputes what decisions on finance and welfare are in the best interests of the vulnerable loved one. Solicitors can help manage and try to settle a dispute before it gets the Court of Protection. The Court may also order a Dispute Resolution Hearing if there is still a disagreement before it goes to a full hearing. It is always advisable to try to settle a dispute before having to go to the Court of Protection but sometimes it is not possible.
Other Areas
The Court also presides over complex matters. These can include Statutory Wills, Infant Settlement Trusts and Deprivation of Liberty Orders (DOLS). These are currently outside the remit of MyPOA.
Independent Mental Capacity Advocate (IMCA)
IMCAs are mainly instructed to represent a vulnerable person where there is no one else. The IMCA is authorised under the Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (General) Regulations 2006. There is a very good blog on the role of an IMCA at the Open Justice Court of Protection Project.
The Official Solicitor
The Official Solicitor (OS) acts for a vulnerable person when there is no other suitable person or agency able or willing to act. They are a civil servant and a lawyer who is appointed by the Government but is independent of them. The OS has staff who work on different cases in the COP.
When to go to the Court of Protection?
Court of Protection proceedings can be brought in any of the following circumstances:
- Complaints: against any Attorney or Deputy or other supervisory body eg by a family member.
- A safeguarding adult alert: about the person or another vulnerable adult. Perhaps by a family member, a concerned person, a doctor or the IMCA.
- An application to the Court of Protection whether or not a person is subject to a standard authorisation.
The Court of Protection will also deal with Deprivation of Liberty Orders (DOLS).
The Court has jurisdiction only while the vulnerable person is alive.
