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and ordersCourt of ProtectionCourt of Protection:range of applications and ordersCourt of Protection:EPAs, andCourt of ProtectionCourt of Protection:range of applications and ordersCourt of Protection:EPAs, and:objections to registrationCourt of Protection:EPAs, andCourt of ProtectionCourt of Protection:range of applications and ordersCourt of Protection:EPAs, and:objections to registrationCourt of Protection:EPAs, andCourt of ProtectionCourt of Protection:range of applications and ordersCourt of Protection:EPAs, and:objections to registrationCourt of Protection:EPAs, andCourt of ProtectionCourt of Protection:range of applications and ordersCourt of Protection:EPAs, and:objections to registrationCourt of Protection:EPAs, andCourt of ProtectionCourt of Protection:range of applications and ordersCourt of Protection:EPAs, and:objections to registrationCourt of Protection:EPAs, andCourt of ProtectionCourt of Protection:range of applications and ordersCourt of Protection:EPAs, 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4.49The different types of application and orders that may be made are dealt with in greater detail in the appropriate chapters. However, it is useful at the outset to have an understanding of the range of orders that can be made:
•Declarations;
•Court orders and decisions under section 16;
•Appointing deputies under section 16;
•Powers in relation to Lasting Powers of Attorney;
•Powers in relation to Advance Decisions to Refuse Treatment;
•Powers in relation to Enduring Powers of Attorney;
•Other powers; and
•Interim Orders.
Declarations
4.50Section 15 of the MCA 2005 provides that the Court of Protection may make declarations as to:
•whether a person has or lacks capacity to make a decision specified in the declaration;
•whether a person has or lacks capacity to make decisions on such matters as are described in the declaration;
•the lawfulness or otherwise of any act done, or yet to be done, in relation to that person.
Section 15(2) provides that the term ‘act’ includes an omission and a course of conduct.
4.51As its name suggests, a declaration involves the court declaring the law or a person’s rights or interests in relation to a particular matter, historically without any reference to enforcement (see further in this regard para 17.1). It registers what exists and declares what it finds. However, it is not an academic process. There has to be a real issue to resolve between the parties so that declaring something to be lawful or otherwise clarifies for the parties what may and may not be done under the Act.
Court orders and decisions under section 16
4.52MCA 2005 s16 applies if a person lacks capacity in relation to a matter or matters concerning their personal welfare or property and affairs.
1MCA 2005 s16(1). It enables the court by order to make the necessary decisions on their behalf or to appoint a deputy to make those decisions for the person. The powers of the court are subject to the provisions of the Act and, in particular, to sections 1 (the principles) and 4 (best interests).
2MCA 2005 s16(3). Any order of the court may be varied or discharged by a subsequent order.
3MCA 2005 s16(7). In
Re MN,
4[2015] EWCA Civ 411, [2016] Fam 87, (2015) 18 CCLR 521. Sir James Munby P suggested the court should usually reflect its determination as to an incapacitated person’s best interests not by way of making a declaration, but by making an order under MCA 2005 s16: ie by making a decision on their behalf. Where necessary, such an order can be coupled with a declaration under MCA 2005 s15(1)(c) as to the lawfulness of actions to be taken by others (for instance by medical professionals providing treatment to the individual).
Section 16 and personal welfare matters
4.53The court’s section 16 powers as respects an incapacitated person’s personal welfare extend in particular to:
5MCA 2005 s17(1), (2).•deciding where the person is to live;
•deciding what contact, if any, the person is to have with any specified persons;
•making an order prohibiting a named person from having contact with the person;
•giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for the person;
•giving a direction that a person responsible for the person’s health care allow a different person to take over that responsibility.
Section 16 and property and financial matters
4.54The court’s section 16 powers as respects an incapacitated person’s property and affairs extend in particular to:
6MCA 2005 s18(1).•the control and management of their property;
•the sale, exchange, charging, gift or other disposition of their property;
•the acquisition of property in their name or on their behalf;
•the carrying on, on their behalf, of any profession, trade or business;
•the taking of a decision which will have the effect of dissolving a partnership of which the person is a member;
•the carrying out of any contract entered into by the person;
•the discharge of the person’s debts and any of their obligations, whether legally enforceable or not;
•the settlement of any of their property, whether for their benefit or for the benefit of others;
•the execution for them of a will (although no will may be made under this power at a time when the person has not reached 18 years of age
7MCA 2005 s18(2).);
•the exercise of any power (including a power to consent) vested in the person whether beneficially or as trustee or otherwise;
•the conduct of legal proceedings in the person’s name or on their behalf.
Appointing deputies under section 16
8See further chapter 7.4.55MCA 2005 s16 provides that the court may:
•by making an order, make the decision or decisions on the person’s behalf in relation to the matter or matters, or
•appoint a person (a ‘deputy’) to make decisions on the person’s behalf in relation to the matter or matters.
9MCA 2005 s16(2). 4.56Naturally, if the judge can make the decision, it will generally be inappropriate for him or her to authorise someone else to make it.
4.57Consequently, the Act provides that a decision by the court is to be preferred to the appointment of a deputy to make a decision; and that the powers conferred on the deputy should be as limited in scope and duration ‘as is reasonably practicable in the circumstances’: see section 16(4).
4.58Without prejudice to section 4, the court may make an order or appoint a deputy on such terms as it considers are in the incapacitated person’s best interests, and may do so even though no application is before it ‘on those terms’.
10MCA 2005 s16(6).Who may be a deputy
4.59A deputy must be an adult (aged 18 or over) or, in the case of property and affairs deputyships, a trust corporation.
11MCA 2005 s19(1).4.60A person may not be appointed as a deputy without their consent.
12MCA 2005 s19(3).4.61The court may appoint the holder of a specified office or position as the person’s deputy,
13MCA 2005 s19(2). for example the holder of a particular local authority finance office. This avoids the need for a new order when the current holder of the post moves on and is replaced.
Two or more deputies
4.62The court may appoint two or more deputies to act jointly, jointly and separately (‘severally’), or jointly in respect of some matters and jointly and separately in respect of others.
14MCA 2005 s19(4).Appointment of successors
4.63When appointing a deputy or deputies, the court may at the same time appoint one or more other persons to succeed the deputy or deputies in such circumstances, or on the happening of such events, as may be specified, and for such period as may be so specified.
15MCA 2005 s19(5).Property and affairs deputyships
4.64With regard to property and affairs deputyships, the court may confer on a deputy powers to:
•take possession or control of all or any specified part of the person’s property;
•exercise all or any specified powers in respect of it, including such powers of investment as the court may determine.
16MCA 2005 s19(8). Restrictions on deputies
4.65The MCA 2005 provides that certain powers may not be conferred on or exercised by a deputy. These restrictions are described in chapter 3 above.
Security, reports and the Public Guardian
4.66The court may require a deputy:
•to give to the Public Guardian such security as the court thinks fit for the due discharge of his functions; and
•to submit to the Public Guardian such reports at such times or at such intervals as the court may direct.
17MCA 2005 s19(9). Reimbursement and remuneration
4.67The deputy is entitled:
•to be reimbursed out of the incapacitated person’s property for their reasonable expenses in discharging their functions; and
•if the court so directs when appointing them, to remuneration out of the incapacitated person’s property for discharging them.
18MCA 2005 s19(7). Revoking a deputy’s appointment
4.68The court may revoke the appointment of a deputy or vary the powers conferred on them if it is satisfied that the deputy:
•has behaved, or is behaving, in a way that contravenes the authority conferred on them by the court or is not in P’s best interests; or
•proposes to behave in a way that would contravene that authority or would not be in P’s best interests.
19MCA 2005 s16(8). Powers in relation to LPAs
20See further chapter 7.4.69MCA 2005 ss22 and 23 set out the court’s powers where a person has:
•executed
21‘Executed’ simply means to sign a document and to complete any other necessary formalities to give it legal effect, such as having it sealed (which does not apply here). The document or ‘instrument’ is simply the standard LPA form prescribed under the MCA 2005. or purported to execute a document (‘an instrument’) with a view to creating an LPA; or
•such a document has been registered as an LPA by the Public Guardian.
22MCA 2005 s22(1). Determining whether an LPA exists or still exists
4.70The court may determine any question relating to:
•whether one or more of the requirements for the creation of an LPA have been met;
23An LPA is not created unless section 10 is complied with, the prescribed document is registered, the person creating it is an adult who had capacity to execute it: MCA 2005 s9(2). •whether the power has been revoked or has otherwise come to an end.
24MCA 2005 s22(2). Impropriety or failure to act in P’s best interests
4.71MCA 2005 s20(4) applies if the court is satisfied:
•that fraud or undue pressure was used to induce the relevant person to execute an instrument for the purpose of creating a lasting power of attorney, or to create a lasting power of attorney; or
•that the donee (or, if more than one, any of them) of an LPA (i) has behaved, or is behaving, in a way that contravenes his authority or is not in the person’s best interests, or (ii) proposes to behave in a way that would contravene his or her authority or would not be in the person’s best interests.
25MCA 2005 s22(3). 4.72In such a case, the court may:
•direct that an instrument purporting to create the lasting power of attorney is not to be registered; or
•if the person lacks capacity to do so, revoke the instrument or the LPA.
26MCA 2005 s22(4). 4.73If there is more than one donee, the court may revoke the instrument or the LPA so far as it relates to any of them.
27MCA 2005 s22(5).Powers of court in relation to the operation of lasting powers of attorney
4.74MCA 2005 s23(1) provides that the court may determine any question as to the meaning or effect of an LPA or an instrument purporting to create one. The court may:
•give directions with respect to decisions which the donee of an LPA has authority to make, and which the person lacks capacity to make;
28MCA 2005 s23(2)(a). •give any consent or authorisation to act which the donee would have to obtain from the person if the person had capacity to give it.
29MCA 2005 s23(2)(b). 4.75Where the relevant person lacks capacity to do so, the court may:
•give directions to the donee with respect to the rendering by them of reports or accounts and the production of records kept by them for that purpose;
30MCA 2005 s23(3)(a). •require the donee to supply information or to produce documents or things in their possession as donee;
31MCA 2005 s23(3)(b). •give directions with respect to the remuneration or expenses of the donee;
32MCA 2005 s23(3)(c). •relieve the donee wholly or partly from any liability which they have or may have incurred on account of a breach of their duties as donee.
33MCA 2005 s23(3)(d). Gifts
4.76The court may authorise the making of gifts which are not permitted gifts (such as customary birthday presents and charitable donations) within the meaning of section 12(2).
34MCA 2005 s23(4).Powers in relation to advance decisions to refuse treatment
4.77The court may make a declaration as to whether an advance decision exists; is valid; or is applicable to a treatment.
35MCA 2005 s26(4).4.78Nothing in an apparent advance decision stops a person from providing life-sustaining treatment, or from doing any act they reasonably believe to be necessary to prevent a serious deterioration in the relevant person’s condition, while a decision in respect of any relevant issue is sought from the court.
36MCA 2005 s26(5).Powers in relation to EPAs
4.79The court’s powers in relation to EPAs are set out in Schedule 4 to the MCA 2005 and derive from the Enduring Powers of Attorney Act 1985. The case-law on that Act therefore continues to be relevant. It is undecided whether and to what extent the main body of the MCA 2005 applies to EPAs.
Objections to the registration of an EPA
4.80If the Public Guardian receives a valid notice of objection to the registration of an EPA from a person entitled to notice then he or she must not register it unless the court directs that it is registered.
4.81A notice of objection to registration is valid if made on one or more of the following grounds:
1)that the power purported to have been created by the instrument (ie EPA form) was not valid as an EPA;
2)that the power created by the instrument no longer subsists;
3)that the application is premature because the donor is not yet becoming mentally incapable;
4)that fraud or undue pressure was used to induce the donor to create the power;
5)that, having regard to all the circumstances and in particular the attorney’s relationship to or connection with the donor, the attorney is unsuitable to be the donor’s attorney.
4.82If any of these grounds is established to the satisfaction of the court, it must direct the Public Guardian not to register the instrument. If the court is not satisfied that any of the grounds are established then it must direct registration.
4.83If the court directs the Public Guardian not to register an instrument on the fraud, undue pressure or unsuitability ground then it must by order revoke the EPA. This is not necessary under the first two grounds because no EPA exists, and it would be premature under the third ground because it does not rest on a finding of fault and the EPA may require registration in the future.
4.84In all cases other than the no-fault prematurity ground, the EPA document must be delivered up to the Public Guardian to be cancelled, unless the court otherwise directs. Again, this is logical. In all of the other cases, the EPA document either has no legal effect (in which case one usually one does not want it circulating in someone’s possession) or at best the attorney has been found to be unsuitable (in which case one usually does not want them retaining possession of it).
Powers in connection with a registered EPA
4.85Once an EPA has been registered, the court may be asked to revoke it or to give directions to the attorney as to the management of the donor’s property.
Giving directions concerning the operation of the EPA
4.86Where an instrument has been registered the court may:
a)determine any question as to the meaning or effect of the instrument;
b)give directions with respect to:
i)the management or disposal by the attorney of the property and affairs of the donor;
ii)the rendering of accounts by the attorney and the production of the records kept by them for the purpose;
iii)the remuneration or expenses of the attorney whether or not in default of or in accordance with any provision made by the instrument, including directions for the repayment of excessive or the payment of additional remuneration;
c)require the attorney to supply information or produce documents or things in their possession as attorney;
d)give any consent or authorisation to act which the attorney would have to obtain from a mentally capable donor;
e)authorise the attorney to act so as to benefit themselves or others otherwise than in accordance with Schedule 4 para 3(2).
Revocation of a registered EPA
4.87Once an EPA has been registered, because the donor is becoming mentally incapable, it can only be revoked by the donor if the court confirms the revocation. On such an application, the court must confirm the revocation of the power if it satisfied that the donor:
a)has done whatever is necessary in law to effect an express revocation of the power; and
b)was mentally capable of revoking a power of attorney when they did so (whether or not they are still capable of doing so by the time the court considers the application).
Objections to a registered EPA
4.88The court must direct the Public Guardian to cancel the registration of a registered EPA in any of the following circumstances:
a)on confirming the revocation of the power by the donor (see immediately above);
b)on directing under MCA 2005 Sch 4 para 2(9)(b) that the power is to be revoked (this is where the court makes a deputy order and when doing so directs that a pre-existing EPA shall be revoked);
c)on being satisfied that the donor is and is likely to remain mentally capable;
d)on being satisfied that the power has expired or has been revoked by the mental incapacity of the attorney;
e)on being satisfied that the power was not a valid and subsisting enduring power when registration was effected;
f)on being satisfied that fraud or undue pressure was used to induce the donor to create the power;
g)on being satisfied that, having regard to all the circumstances and in particular the attorney’s relationship to or connection with the donor, the attorney is unsuitable to be the donor’s attorney.
4.89If the court directs the Public Guardian to cancel the EPA’s registration on one of the fault grounds (fraud, undue pressure or unsuitability) then it must also revoke the EPA itself, ie the EPA document is no longer valid and therefore there can be no future attempts to re-register it.
4.90In all cases other than the no-fault ‘donor is and is likely to remain mentally capable’ ground, the EPA document must be delivered up to the Public Guardian to be cancelled, unless the court otherwise directs. Again, this is logical. In all of the other cases, the EPA document either has no legal effect or at best the attorney has been found to be unsuitable.
Other powers
4.91The court’s other main powers relate to COPR r202 and MCA 2005 Sch 3.
Applications under COPR r202
4.92The court receives applications from persons subject to a deputyship order for the deputy order to be revoked on the ground that the person concerned no longer lacks capacity in relation to the matter or matters in question and therefore no longer falls within the court’s jurisdiction.
Applications under MCA 2005 Sch 3
4.93The court sometimes receives applications in relation to Schedule 3 to the Act which is concerned with the Hague Convention and the international protection of adults with incapacity. For example, a person may apply to the court for a declaration that a protective measure taken in a country other than England and Wales is enforceable in England and Wales. The Convention and Schedule 3 are dealt with in chapter 26.
Interim orders where there is reason to believe person lacks capacity
4.94The Court of Protection’s jurisdiction is directed towards making decisions on behalf of people who lack capacity to make their own decision. By the end of the case there is usually ample evidence on which the judge can determine whether or not the person concerned has that capacity.
4.95What, though, is the position where it appears that a person lacks capacity to make a decision for themselves, and in consequence is at risk, but that person will not agree to a capacity assessment and the evidence which can be put before the court is incomplete?
4.96The answer is that the court has power to make interim orders and directions under MCA 2005 s48 if there is reason to believe that the relevant person lacks capacity in relation to the matter and it is in their best interests for the court to do so.
4.97The specific issue raised in the case of
Re F37(2009) COPLR Con Vol 390. was whether the court has any jurisdiction to hear an application about a person unless and until the presumption of capacity is first rebutted. What if the medical evidence concerning capacity is equivocal?
4.98It was observed by HHJ Hazel Marshall QC that there are two stages to the court’s jurisdiction under section 48. The section enables the court to make ‘Interim orders and directions’ provided, firstly, that ‘there is reason to believe that [the person] lacks capacity in relation to the matter’. This is plainly a lower threshold than ‘proof on balance of probability that [the person] lacks capacity’. What is required is simply sufficient evidence to justify a reasonable belief that the person may lack capacity in the relevant regard. There are various phrases which might be used to describe what is required, such as ‘good’ or ‘serious cause for concern’ or ‘a real possibility’ that the person lacks capacity, but the concept behind each is the same and quite easily recognised.
4.99It is the second stage which provides the real protection for the citizen against undue interference with their affairs and their right to make their own decisions. The first stage involves considering whether there is evidence giving good cause for concern that the person may lack capacity in some relevant regard. Once that is raised as a serious possibility, the second stage requires the court to consider whether ‘it is in the person’s best interests to make the order or give the directions, without delay’.