Mental Capacity ActMental Capacity ActPractitioners ForumPractitioners Forum

The Court of ProtectionThe Court of Protection

This presentation will cover:This presentation will cover:

Look at the role of the C.O.P.Look at the role of the C.O.P. Outline how to apply and feesOutline how to apply and fees Look at standard and emergency Look at standard and emergency

applicationsapplications Identify what medical treatments Identify what medical treatments

need to be approved by the Courtneed to be approved by the Court Examine the role of Deputies and Examine the role of Deputies and

their supervisiontheir supervision

What is the role of the C.O.P?What is the role of the C.O.P?

Generally the court will make decisions in Generally the court will make decisions in disputed or complex cases:disputed or complex cases:

Whether someone has the capacity to Whether someone has the capacity to make decisionsmake decisions

Whether an act done or proposed is in Whether an act done or proposed is in someone's best interestssomeone's best interests

Whether Lasting Powers of Attorney or Whether Lasting Powers of Attorney or Advanced Decisions are validAdvanced Decisions are valid

Whether an attorney or deputy is acting Whether an attorney or deputy is acting in someone's best interestsin someone's best interests

Whether undue pressure or force was Whether undue pressure or force was used to appoint an attorneyused to appoint an attorney

What power does the C.O.P. What power does the C.O.P. have?have? The Court has the same powers, rights and The Court has the same powers, rights and

privileges and authority as the High Courtprivileges and authority as the High Court The Court will either make the decision itself or The Court will either make the decision itself or

appoint a deputy to make itappoint a deputy to make it The Court must make its own decisions where there The Court must make its own decisions where there

is no EPA or LPA and a financial decision must be is no EPA or LPA and a financial decision must be mademade

The Court must make its own decision if it is The Court must make its own decision if it is necessary to make a will or amend an existing willnecessary to make a will or amend an existing will

It is a Superior Court of Record and is able to set It is a Superior Court of Record and is able to set precedents that must be followed in future casesprecedents that must be followed in future cases

It is made up of numerous departments each one It is made up of numerous departments each one having a different rolehaving a different role

First Point of ContactFirst Point of Contact

The Administration UnitThe Administration Unit

Processing of applicationsProcessing of applications Handling pre-hearing enquiriesHandling pre-hearing enquiries Dealing with attended hearingsDealing with attended hearings

On receiving an application they will contact On receiving an application they will contact you within 25 working daysyou within 25 working days

Where no hearing is required a direction will Where no hearing is required a direction will be given within 21 weeksbe given within 21 weeks

When a hearing is required a hearing will be When a hearing is required a hearing will be set within 15 weeksset within 15 weeks

There are courts in London, Birmingham, There are courts in London, Birmingham, Cardiff, Manchester, Newcastle, PrestonCardiff, Manchester, Newcastle, Preston

General time scalesGeneral time scales

People contacting or visiting the C.O.P. can People contacting or visiting the C.O.P. can expect:expect:

A response to letters, faxes, e-mails within A response to letters, faxes, e-mails within 15 working days15 working days

If you request a form or printed advice they If you request a form or printed advice they will be posted within 1 working daywill be posted within 1 working day

If you make a complaint you will have a full If you make a complaint you will have a full response within 15 working daysresponse within 15 working days

LPA’s will be registered within 5 days of the LPA’s will be registered within 5 days of the investigation stage being completedinvestigation stage being completed

How to contact themHow to contact them

Office of Public GuardianOffice of Public Guardian

Archway Tower, 2 Junction RoadArchway Tower, 2 Junction Road

LondonLondon

N19 5SZN19 5SZ

Telephone 0845 330 2900Telephone 0845 330 2900

Fax 020 7664 7705Fax 020 7664 7705

E-mail E-mail customerservices@publicguardian.gsi.gov.ukcustomerservices@publicguardian.gsi.gov.uk

Remit of the CourtRemit of the Court

Serious CasesSerious CasesYou must apply to the court if the following decisions You must apply to the court if the following decisions

are required:are required: Withholding or withdrawing artificial nutrition and Withholding or withdrawing artificial nutrition and

hydration to someone in a permanent vegetative hydration to someone in a permanent vegetative statestate

Donation of an organ or bone marrowDonation of an organ or bone marrow Non therapeutic sterilizationNon therapeutic sterilization Termination of pregnancyTermination of pregnancy Dispute about serious medical treatment and there Dispute about serious medical treatment and there

is lack of agreement amongst partiesis lack of agreement amongst parties

Serious Medical TreatmentSerious Medical Treatment

Treatment which involves the use of a Treatment which involves the use of a degree of force or restraintdegree of force or restraint

Experimental treatmentExperimental treatment Ethical dilemmasEthical dilemmas Treatments which may cause serious or Treatments which may cause serious or

prolonged painprolonged pain Treatments which have major Treatments which have major

consequences on future life choicesconsequences on future life choices

In these cases discuss the application before In these cases discuss the application before hand with the Official Solicitor on 020 7911 hand with the Official Solicitor on 020 7911 71277127

Who will decide?Who will decide?

Withholding or withdrawing artificial Withholding or withdrawing artificial nutrition and hydration to someone in a nutrition and hydration to someone in a permanent vegetative statepermanent vegetative state

Ethical dilemmas in an experimental Ethical dilemmas in an experimental procedure or one not previously heard by a procedure or one not previously heard by a courtcourt

President of the Court of ProtectionPresident of the Court of Protection

Who will decide?Who will decide?

Serious Medical TreatmentsSerious Medical Treatments

President of the Family DivisionPresident of the Family Division

OrOr

Chancellor of the High CourtChancellor of the High Court

Remit of the CourtRemit of the CourtAgain the Court can be involved in disputed or Again the Court can be involved in disputed or

complex cases such as:complex cases such as: Where a person should liveWhere a person should live The level of contact with certain peopleThe level of contact with certain people Prohibiting contact with a certain personProhibiting contact with a certain person Control or management of propertyControl or management of property Sale, exchange, gift, disposal of propertySale, exchange, gift, disposal of property Purchasing propertyPurchasing property Continuing a contractContinuing a contract Discharge of debtsDischarge of debts Making a willMaking a will Conducting legal proceedings on someone's behalfConducting legal proceedings on someone's behalf Appointing a deputyAppointing a deputy Withdrawing money from a bank account in the absence Withdrawing money from a bank account in the absence

of a second signatory or LPAof a second signatory or LPA

Taking Cases to CourtTaking Cases to Court

Application is via forms on the Application is via forms on the website website www.publicguardian.gov.ukwww.publicguardian.gov.uk

If the Court feels the issue is not If the Court feels the issue is not complicated enough they will complicated enough they will refer the case back to you for refer the case back to you for mediationmediation

Cases are held in private only Cases are held in private only invited people can attendinvited people can attend

Urgent Applications Urgent Applications

Healthcare staff can give life Healthcare staff can give life sustaining treatment while the sustaining treatment while the court comes to decisioncourt comes to decision

Emergency 24 hour procedures Emergency 24 hour procedures are available in specific cases are available in specific cases via the Royal Courts of Justicevia the Royal Courts of Justice

The Court will make a decision The Court will make a decision about a limited type of caseabout a limited type of case

Urgent ApplicationsUrgent Applications

Urgent Medical TreatmentUrgent Medical Treatment Preventing someone being removed from Preventing someone being removed from

the place where they livethe place where they live Executing a financial transaction where Executing a financial transaction where

someone's life expectancy is extremely someone's life expectancy is extremely shortshort

1.1. In office hours - Urgent Business Officer In office hours - Urgent Business Officer on 0845 330 2900on 0845 330 2900

2.2. Out of Office hours – Security Office on Out of Office hours – Security Office on 020 7947 6000 020 7947 6000

Fast Track Procedure (within Fast Track Procedure (within 5 -10 days)5 -10 days) Property sale or purchase where there is immediate Property sale or purchase where there is immediate

risk of losing a buyerrisk of losing a buyer Appointment of new trustee to sell a property where Appointment of new trustee to sell a property where

there is immediate risk of losing a buyerthere is immediate risk of losing a buyer Investment of money where there is a deadline Investment of money where there is a deadline

approachingapproaching You need the release of someone's funds to pay for You need the release of someone's funds to pay for

arrears of care home fees or someone being arrears of care home fees or someone being discharged from hospital needs own home adaptationsdischarged from hospital needs own home adaptations

1.1. If you have not already made an application you can If you have not already made an application you can apply for an interim direction via the fast track business apply for an interim direction via the fast track business officer on 0845 330 2900officer on 0845 330 2900

2.2. If you have already made an application you can apply If you have already made an application you can apply for an application within proceedings via the fast track for an application within proceedings via the fast track business officer on 0845 330 2900business officer on 0845 330 2900

Court of Protection FeesCourt of Protection Fees

Single fee for all applications £400Single fee for all applications £400 Oral Hearing fee £500Oral Hearing fee £500 Appeal fee £400Appeal fee £400 Copy of a document fee £5Copy of a document fee £5 Copy of certified document fee £25Copy of certified document fee £25 EPA registration fee £120EPA registration fee £120 LPA registration fee £150LPA registration fee £150 Application to search the EPA/LPA register Application to search the EPA/LPA register

fee £25 (unless NHS/LA/IMCA requests fee £25 (unless NHS/LA/IMCA requests information – when it is free)information – when it is free)

Fee exemptions and Fee exemptions and remissionsremissions Receipt of means tested benefitsReceipt of means tested benefits

1.1. Income supportIncome support

2.2. Income based job seekers allowanceIncome based job seekers allowance

3.3. Pensions guarantee creditPensions guarantee credit

4.4. Working tax credit claimed with child tax credit or Working tax credit claimed with child tax credit or disability element or severe disability elementdisability element or severe disability element

5.5. Housing benefitHousing benefit

6.6. Council tax benefitCouncil tax benefit You must not be in receipt of damages award greater You must not be in receipt of damages award greater

than £16,000than £16,000 Gross income less than £16,000Gross income less than £16,000 Hardship may be causedHardship may be caused You can also apply to delay payment if unable to pay You can also apply to delay payment if unable to pay

immediatelyimmediately

Additional Powers of the CourtAdditional Powers of the Court

Can commission a report from Can commission a report from the NHS, Local Authority or the NHS, Local Authority or Care HomeCare Home

Appoint a Court of Protection Appoint a Court of Protection Visitor to interview the person Visitor to interview the person and take copies of recordsand take copies of records

Appoint a Litigation Friend to Appoint a Litigation Friend to conduct proceedings on conduct proceedings on someone's behalfsomeone's behalf

Who can apply? Who can apply?

The person who lacks capacity (or is alleged to lack The person who lacks capacity (or is alleged to lack capacity)capacity)

Someone with parental responsibility if person is Someone with parental responsibility if person is under 18 years of ageunder 18 years of age

An attorney under an EPA/LPAAn attorney under an EPA/LPA A court appointed deputyA court appointed deputy A person named in an existing court orderA person named in an existing court order An NHS Trust proposing serious medical treatmentAn NHS Trust proposing serious medical treatment A local Authority making an application in relation to A local Authority making an application in relation to

concerns about a vulnerable adultconcerns about a vulnerable adult

Any other person applying (i.e. family, friends, carers) Any other person applying (i.e. family, friends, carers) will need permission from the Court to do sowill need permission from the Court to do so

Lets take a look at DeputiesLets take a look at Deputies

Someone appointed by the Someone appointed by the Court to make substituted Court to make substituted decisionsdecisions

Can only make the decisions the Can only make the decisions the Court has ordered them toCourt has ordered them to

Cannot delegate their duties to Cannot delegate their duties to othersothers

Lets take a look at DeputiesLets take a look at Deputies

Deputies can notDeputies can not Prohibit someone from having Prohibit someone from having

contact with the personcontact with the person Change the individual Change the individual

responsible for the persons responsible for the persons healthcarehealthcare

Override an existing LPAOverride an existing LPA Refuse consent to life sustaining Refuse consent to life sustaining

treatmenttreatment

Supervision of DeputiesSupervision of Deputies Supervised by the Supervisory Division of the Supervised by the Supervisory Division of the

C.O.P.C.O.P. Type 1 – Highest supervisionType 1 – Highest supervision Type 2 – Lower supervisionType 2 – Lower supervision Type 3 – Minimal supervisionType 3 – Minimal supervision

Regime depends upon:Regime depends upon:

1.1. Complexity and value of the persons estateComplexity and value of the persons estate

2.2. Relationship between the deputy and the clientRelationship between the deputy and the client

3.3. Clients support networkClients support network

4.4. Terms of the Court orderTerms of the Court order

Supervision of DeputiesSupervision of Deputies

Type 1 – one visit by Court of Protection Type 1 – one visit by Court of Protection Visitor, regular reports, contact by O.P.G. Visitor, regular reports, contact by O.P.G. with interested third partieswith interested third parties

Type 2 – Personally report to the O.P.G. Type 2 – Personally report to the O.P.G. annuallyannually

Type 3 – No regular intervention ( allocated Type 3 – No regular intervention ( allocated to cases where assets are below £16,000to cases where assets are below £16,000

Welfare and Investment specialists will Welfare and Investment specialists will recommend the type of supervision and recommend the type of supervision and what that should entailwhat that should entail

FeesFees

Deputy set up - £125Deputy set up - £125 Type 1 annual supervision - £800Type 1 annual supervision - £800 Type 2 annual supervision - £175Type 2 annual supervision - £175 Type 3 annual supervision - £nilType 3 annual supervision - £nil

Fees are payable from the funds of the person for Fees are payable from the funds of the person for whom the deputy was appointed.whom the deputy was appointed.

In addition the deputy can claim reasonable expenses In addition the deputy can claim reasonable expenses from the persons estate and be paid if the Court so from the persons estate and be paid if the Court so

directsdirects

So what do I do?So what do I do?

Always discuss with your manager any request to Always discuss with your manager any request to contact the Court of Protection or Office of the contact the Court of Protection or Office of the Public GuardianPublic Guardian

Always refer the request to the Legal Services Always refer the request to the Legal Services Department of your organisationDepartment of your organisation

Ensure you have tried all other reasonable Ensure you have tried all other reasonable measures before going to Court (if the C.O.P. thinks measures before going to Court (if the C.O.P. thinks your application was unnecessary then will call you your application was unnecessary then will call you to Court to explain yourself)to Court to explain yourself)

Ensure your case notes meet the highest standards Ensure your case notes meet the highest standards as they will be used in the Court caseas they will be used in the Court case

Take copies of the Court authorisation given to Take copies of the Court authorisation given to deputiesdeputies