•There is little point applying to the court unless it has power to grant the remedy sought.

•The court’s jurisdiction is defined by the Mental Capacity Act (MCA) 2005. Most obviously, it is a jurisdiction exercisable only over people who lack (or, on an interim basis, appear to lack) capacity.

•Remember that a person must be assumed to have capacity unless it is established that they lack capacity. Furthermore, a person is not to be treated as being unable to make their own decision unless all practicable steps to help them to do so have been taken without success, or merely because they make or propose making an unwise decision.

•Even if the person is incapacitated, certain family law matters (such as consenting to the making of an adoption order) and Mental Health Act (MHA) matters (treatment without consent under that Act) are excluded from its jurisdiction: see sections 27 and 28.

•Depending on the type of decision to be made, the court’s jurisdiction may be restricted to incapacitated adults (eg statutory wills, lasting powers of attorney (LPAs)), to persons aged 16 or over (eg treatment or care issues) or available to people of all ages (property and financial affairs matters where the child’s incapacity is likely to last into adulthood).

•Court of Protection Rules (COPR) 2007 SI No 1744 r87 and Practice Direction (PD) 12B contain provisions for disputing the court’s jurisdiction.

•The likely cost for the person concerned, not just financially but emotionally if personal or family discord is likely to result (ask in what ways the application may cause them harm).

•The affordability of proceedings for the relevant person. Even relatively modest costs may be unaffordable. The Court of Protection has the same status as the High Court and the fees charged for applications, legal assistance and reports tend to reflect this. It is essential to avoid Jarndyce v Jarndyce situations where the costs of litigation approach or exceed the value of the estate. Everyone involved is under a duty to deal with the underlying issues in a proportionate and cost-effective manner.

•Who is at risk of bearing the litigation costs. It should not be assumed that whatever the merits of the application each party will pay their own litigation costs or that the costs will be recoverable from the incapacitated person’s estate. The rules enable the court to have regard to the conduct of the parties, which includes their conduct before as well as during the proceedings, whether it was reasonable for them to raise, pursue or contest a particular issue, etc.

•The strength of the evidence and the chances of the application succeeding (is there sufficient evidence in support of it and is the court likely to be persuaded to exercise its powers?).

•The suitability and appropriateness of the applicant (ought it to be obvious that another person such as a spouse or partner is better placed to apply and will reasonably object?).

•Relevant guidance in the Codes of Practice.

•The availability of more appropriate alternative procedures or remedies:

•In order to prevent applications which are frivolous, vexatious, an abuse of process or otherwise an illegitimate interference with the interests and rights of the relevant person, the court’s permission is required to make some applications: see MCA 2005 s50 and COPR rr50–52.

•When deciding whether to grant permission, MCA 2005 s50(3) requires the court to consider:

•Even when permission is required, it is simply a filtering stage. Permission ought to be granted where, having regard to these and any other relevant considerations, on the material available to the court the application deserves fuller investigation by it and, realistically, the order sought may be in the best interests of the relevant person.