The New Court of Protection - The Application Process Presented by Marion Bowgen 14 January 2008

The New Court of Protection - The Application Process

Presented by Marion Bowgen

14 January 2008

www.publicguardian.gov.uk

Introduction

• What has taken place so far?

• What will not be covered in this presentation?

• So what will we will be talking about today?


This Presentation Will Cover:

• The new Court of Protection (CoP).

•The process of making a property & affairs

(finance) application to the CoP.

• Where to go for help?

• Questions.


New Court of Protection (CoP)

• Replaces the old Court of the same name with new procedures.

• Final arbiter for all matters relating to capacity.

• Property & affairs jurisdiction.

• Personal welfare and healthcare jurisdiction.

• A superior Court of Record – case law.

• Now has a regional presence.


Old CoP Procedure New CoP Procedure

Informal procedure Formal procedure based on Civil

Procedure Rules and Family Practice

Rules and Practice Directions

Application by letter Application must be on the appropriate

form(s)

Civil Servants made judicial decisions Only judges can make judicial decisions

Court decisions sent by letter Most court decision will be by formal Court

Order

Notice to the Client (P) and relatives at the

start of proceedings only

Greater participation by the Client (P) and

people with an interest in proceedings

including naming people a ‘party’ –

keeping them up-dated on the application.


Making an Application to the CoP

An application to the CoP may be necessary for:

• A decision to be made where an existing order is

insufficient.

• Particularly difficult decisions.

• Disagreements that cannot be resolved in any other way

or;

• Situations where on-going decisions may need to be

made about the personal welfare or property and affairs

of a person who lacks capacity to make decisions for

themselves.


New Court = New Forms and Procedures

Guidance Booklet COP 42:

Part A - Introduction.

Part B – Is an application to the Court needed?

Part C – How do I make a COP application?

Part D – What happens once an application is submitted?

Part E – The COP process.

Part F – Where to go to for help.

Appendix 1 - Information about the forms to use in different types of application.

Appendix 2 – A description of the forms.

Appendix 3 – A glossary of terms.

Court of Protection Rules (including Practice Directions (PD))


Fee Exemptions & Remissions• Automatic exemptions will be available for individuals in

receipt of certain means-tested benefits.

• If an automatic exemption from payment of fees is refused, this will not prevent a further application for remission being made.

• The Court or OPG will have the power to remit or postpone payment of the whole or part of any fee for those whose gross income is less than £16,000 or where, in its opinion, hardship maybe caused or the circumstances are otherwise exceptional.


Making an Application to the Cop (1): Cases Where A Receiver Was Appointed Under The Mental Health Act 1983

•Transitory Provisions apply.

•Practice Direction 22B applies.

•Applications by former Receivers (Deputies) should be

made on form COP9: Application Notice.

•Service / notification should not be required for most

applications.

•No fee payable.

•Ceases to have effect on 30 June 2008.


Making an Application to the CoP (2): Cases Where The Order Originally Issued Is No Longer Sufficient

• Streamlined Procedure apply.

• Practice Direction 9D applies.

• Applications by the Deputy on COP1 : Application Form

used to start proceedings in the Court & sets out the order the

applicant is asking the Court to make.

• Dispenses with some service / notification requirements

• Standard application fee £400 payable (unless exempt or

applying for remission).

•Will continue to have effect until COP Rules/PDs revised.


Making an Application to the CoP (3): New Property and Affairs Cases (post-1st October 2007)

This is a standard application requiring these forms:

COP1 Application form

COP1A Annex A Supporting application information

COP2 Permission application - not required

COP3 Assessment of Capacity form

COP4 Deputy’s declaration form (if applicable)

Copy of LPA / EPA (if applicable)

Application fee £400 (if applicable)


Making an Application to the CoP (4): Where urgent or interim directions required

• Use Section 5 of the COP1 form.

• Set out clearly the reason why the interim directions

are required and;

• If urgent they should also request the Court to dispense

with notification of the Client under Rule 49 of the Court

of Protection Rules 2007.

• The Court will have to be persuaded that it is in the

Client’s best interests to issue the interim directions

and dispense with notification.


I’ve filled in all the forms … what do I do now?

• Make 2 copies of all the forms.

• Submit the original and one copy of the whole

application plus the fee (if necessary) to the COP

at Archway Tower.

• Put your copy in a safe place.

• No notification of any parties (including the Client)

is required at this point.

• Wait to hear from the Court


The Court Service Standards

Individuals dealing with the Court can expect:

• that the Court will contact the applicant within 25 working

days of receipt of the formal application;

• that where no oral hearing is directed, the Court will give a

direction within 21 weeks of receipt of the application;

• that where an oral hearing is directed by the Court, we will set

the hearing within 15 weeks of the direction.

The OPG & Court cannot deal with complaints about decisions.

made by the Court as judges act independently of any

administrative function of the Government.


The Court Process

Issuing the ApplicationOn receipt of an application, the court admin will ‘issue’ it by putting an original stamp on the application form and return it to you, along with the following forms:COP5 Acknowledgement of service / notificationCOP14 Proceedings about you in the CoPCOP14A Guidance notes for completing form COP14COP15 Notice than an application form has been issuedCOP15A Guidance notes for completing form COP15COP20 Certificate of service / non-service and

certificate of notification / non – notification

Hearing dates are no longer issued automatically


The Court Process: Notification

Within 21 days of the Court ‘issuing’ the application you

must:

• ‘Notify’ relatives and others named in your application as

likely to have an interest using COP15 (enclose form

COP5).

• ‘Notify’ the person to whom the application relates and

provide COP14 (enclose form COP5).

•Tell the Court you have done this using a COP20.


The Court Process: The CP20 Form

A CP20 is used by the Applicant to inform the Court when anyone (including the Client) has been:

served with a copy of any document;

given notification of an application issued by the Court.

Must be completed each time the Client is notified of:

• Issue/withdrawal of an application.

• If an appeal application notice is issued.

• If a date is fixed for an oral hearing.

• The final order the Court issues

• Any other direction of the Court.


The Court Process: The CP20 FormA separate CP20 must be completed for each person, every time a document is served or notification given.

The whole form does not have to be completed, the section needed depends on who you have served:Section 1 – completed in all cases.

Section 2 – respondent/party to proceedings – someone who will contribute to the case/hearing.

Section 3 – anyone told that the application has been issued.

Section 4 – the Client.

Section 5 – the Client & anyone told that the application has been issued.

Complete and return the COP 20 form to the Court within 7 days of the date of service / notification.


After the service / notification period the Court will considerthe application and may decide to:

1. Make a decision based on the application without a Court hearing (if there is no objection or dispute).

2. Give directions e.g. request additional information about the application or the next steps to be taken (if there is an objection/dispute or more information required).

3. Issue a hearing date for the application to be heard by the Court (if an attended/oral hearing is required).

The Court Process: Court Considers Application


The Court Process : If Court Makes A Decision Without An Attended Hearing

Within 21 days of the final order being made, you must inform the person to whom the application relates of the final order, its effects and that they may seek advice and assistance in relation to the order using COP14.

• You must also complete and return a CP20 within 7 days of making that application.

• Must check all the information in the order, including spellings.


The Court Process : If Court Orders An Attended Hearing

Interested parties will receive COP28: Notice of hearing

form. This will include the date, time and details of where

the hearing will take place.

• Within 21 days of the date you receive the notice of

hearing (no later than 14 days before the date of the

hearing) must inform the person to who the application

relates of the date of the hearing using COP14.

• Must complete and return the COP20 within 7 days of

making that notification.


The Court Process : If Anyone Is Unhappy With The Decision

1. Reconsideration - an order made without a hearing.

• Dealt with by Practice Direction 20A

• Complete form COP9 - no fee payable

2. Appeal – if an order is made at a hearing. Complete forms:

COP35 - Appellants notice (seeking permission to appeal)

COP37 - Skeleton argument

COP24 - (If wish to provide evidence in support of appeal)

Application fee £400 payable (unless exempt or applying for

remission), plus a copy of the Court order you wish to appeal &

any other supporting documents.


YOUR QUESTIONSYOUR QUESTIONS

??


Further details

Office of the Public GuardianArchway Tower2 Junction RoadLondon N19 5SZDX: 141150 Archway 2

Phone Number: 0845 330 2900Fax Number: 020 7664 7705Textphone: 0207 664 7755Email: [email protected]: www.publicguardian.gov.uk

Documents

The New Court of Protection - The Application Process Presented by Marion Bowgen 14 January 2008