Preliminary matter
Initial considerations
7.4Before making an application to the court it is worth considering if other less costly and cumbersome options could offer a solution (see also in this regard chapter 5). Where P’s life expectancy is short or funds are very limited then an application may not be appropriate. If the prospective applicant is aware that there is any possibility that the application could be contentious it is wise to try to consult with P’s family and wider support network to establish if a consensus can be achieved before taking matters before the court.
7.5If the appointment of a deputy is necessary there are particular considerations as to the choice of deputy, these can be found below at para 7.40.
Application procedure
7.6All property and affairs applications begin following the same procedure. Permission is not required to make any application concerning P’s property and affairs, whether for the appointment of deputy or any other issue.
1COPR r51(2)(a).7.7The court application documents were revised in 2015 with the aim of simplifying the application process and ensuring that the court had all necessary information at an early stage. The core application documents for property and affairs applications are:
•COP1 Application form;
•COP1A Supporting evidence for property and affairs; and
•COP3 Assessment of capacity.
7.8COPR Part 9 deals with beginning proceedings. Practice Direction (PD) 9A provides guidance on completing the COP1, which is the main application form for starting proceedings. The COP1 form sets out the order or decision that the court is being asked to make, why the decision needs to be made and how it is in P’s best interests to make the decision.
7.9All applications relating to property and affairs (unless made by an existing deputy or attorney under the procedure set out in PD 9D) require a COP1A form to provide the court with P’s financial context. It is important to give as much information as possible to ensure that the order ultimately made by the court suits P’s circumstances. Where the application is for the appointment of a deputy this information will be used by the court to set the appropriate guarantee bond and decide how much the deputy may access of P’s funds in any given year without further authority or such other restrictions as it deems appropriate. This ensures that the court does not unnecessarily curtail the deputy’s authority or leave P exposed by the deputy being under-bonded. In other applications relating to P’s property and affairs the question of affordability is often key to any decision to be made so it is essential to robust decision making that all parties have detailed financial information.
7.10The COP1A form also identifies who is a respondent to the application and who is to be notified. A respondent is ‘any person (other than P) whom the applicant reasonably believes to have an interest which means he ought to be heard in relation to the application (as opposed to being notified of it)’.
2COPR r63(c)(iii). The applicant should attempt to identify at least three people to notify of the application.
3COPR r70 and PD 9B para 4. People to be notified are people who have a reasonable interest in being notified of the application. Those who are notified of an application may apply to be joined as parties.
4COPR r72(6) and (8); PD 9C para 4. There is a presumption (which can be displaced) that close members of P’s family will have such an interest and PD 9B para 7 lists those who should ordinarily be notified, in descending order of closeness to P.
5PD 9B para 7. If someone in that list is not notified, then the application form should explain the reasons for their omission.
7.11Form COP3 provides the court with an assessment of P’s mental capacity in relation to the specific decision to be made by the court. It is usually completed by a medical practitioner, social worker or other suitably qualified professional. The Court of Protection’s jurisdiction is only engaged where there is evidence that on the balance of probabilities it is more likely than not that a person is not capable of making certain decisions for themselves because of a lack of capacity (see further paras 3.33–3.39). When completing Part A of the form, advisers should ensure that they have correctly identified the issue or issues in respect of which P’s decision-making capabilities need to be assessed. The tests in relation to statutory wills and gifts are touched on below at para 7.84 onwards and are addressed in detail in the BMA/Law Society’s
Assessment of Mental Capacity.
64th edition, 2015.7.12Occasionally there will be uncertainty as to a person’s capacity or lack of capacity. If there is conflicting evidence all relevant evidence as to capacity should be put before the court for consideration.
7See, by analogy, Loughlin v Singh and others [2013] EWHC 1641 (QB), [2013] COPLR 371. The judge can then consider the evidence available and make a decision or give directions to resolve the issue of P’s mental capacity. This may be by way of an oral hearing.
7.13If the court is not satisfied with the medical evidence available, or if there has been some difficulty in having P’s capacity assessed, the court is able to order under MCA 2005 s49 that a Special Visitor meets P to assess their capacity (see further in respect of section 49 reports, paras 12.45–12.53). A Special Visitor is a member of a panel appointed by the Lord Chancellor, with a medical qualification and special knowledge of and experience in cases of impairment of or disturbance in the functioning of the mind or brain;
8MCA 2005 s61(2). one of their roles is to carry out assessments of capacity in these more difficult or unusual cases.
7.14Medical evidence must be recent. If the court deems that the evidence is too old it may order that an updated assessment of capacity needs to be carried out which will delay the application. If the COP3 form is dated more than six months before the application then the court is likely to ask for an updated assessment.
7.15Additional forms are required depending upon the particular application to be made:
•deputy application – COP4 deputy’s declaration;
•authorisation of a Statutory will, codicil, gift or other disposition of P’s property – COP1C;
•applications to appoint or discharge a trustee – COP1D;
•applications by an existing deputy or attorney – COP1E;
•applications relating to the validity or operation of an EPA/LPA – COP1F.
Applicants are directed to these additional forms when completing the COP1.
7.16Form COP4 is the prospective deputy’s declaration that they are a fit and suitable person to act. Each person who wishes to be appointed as deputy must compete a copy of this form.
7.17Forms COP1C, COP1D, COP1E and COP1F each use a check-list approach to ensure that the applicant has provided all the information that the court will need to reach a decision for the specified matter.
7.18In most applications other than a straightforward deputy application a COP24 witness statement will also be required. This allows applicants to explain more fully the matter they wish the court to decide and to set out the evidence available and the reasons for the decision proposed being in P’s best interests. The rules relating to evidence are explored in more detail in chapter 12.
Process
7.19The completed documents must be submitted (the address is in appendix G below) along with the appropriate application fee. In some circumstances a fee remission may be available. Details of fees and remissions are to be found in appendix F below.
7.20For a straightforward application, such as that for the appointment of a deputy, the application form will usually be sealed and issued without the need for it to be referred for judicial scrutiny. To issue an application the court logs the details of the applicant and P on their system, allocates a case reference and makes up the court’s paper file. A copy of the COP1 form, stamped with the date of issue and with the court reference number completed, will be returned to the applicant to carry out service.
7.21In some cases the application will need to be referred to a judge before it is issued. This may be where there is conflicting evidence as to P’s capacity, if some information is incomplete, interim directions have been requested or the application is for a statutory will or gift for example. Depending upon the circumstances or the nature of the application the court may make enquiries or issue initial directions to obtain further information before issuing the requested application. Where the application is for a statutory will or gift the court will make an order at this stage joining the Official Solicitor to represent P.
7.22Once the applicant receives back the issued COP1 form and any initial directions, the next step is to deal with service and notification.
Service and notification
7.23The applicant is responsible for serving anyone named as a respondent
9COPR r66 or anyone who is to be notified of the proceedings.
10COPR r70. The applicant must serve the respondents, and those to be notified of the issue of proceedings, within 14 days of the date of the issue of the application.
11COPR r66(1). The time limit was reduced by the Court of Protection (Amendment) Rules 2015, in an attempt to speed up the processes of the court. The provisions as to service appear in Part 6 of the COPR, supported by PD 6A, which sets out how service should be effected (for example, by document exchange or electronically). Rule 32 explains the provisions for service on children or protected parties.
7.24When serving respondents
12See para 8.5. the applicant must send each of them a copy of the following documents:
•a copy of the issued application form;
•a copy of any documents filed with the application form (for example, the COP1B, COP3, COP4 if the application relates to a deputyship, any witness statements);
•a copy of any orders made by the court;
•notice of acting (if this has not been served) – COP30;
•notice of issue of legal aid certificate (if appropriate);
•COP5 acknowledgment of service for the individual to complete.
7.25Those who are notified of an application do not need to be served with a full copy of the application papers. When serving those notified the applicant must send them:
•COP15 notice that an application has been issued, this provides details of the applicant and the order sought;
•COP5 acknowledgement of service for the individual to complete.
7.26When carrying out service, the applicant or their legal adviser should consider whether to include documents other than those required by the procedure. For instance, it is good practice to include information about the general rule as to costs should the party notified wish to take independent legal advice.
7.27Once the applicant has served all those who are to be served or notified she must complete form COP20B confirming that dates or service and notification and return this to the court.
Dispensing with service
7.28There are certain circumstances under which service can be dispensed with, either upon application to the court or of the court’s own motion.
13COPR r38. It has been held that a decision to dispense with service is not an act done or decision made on behalf of P, such that the principles of the MCA 2005 do not strictly apply to the decision:
I v D.
14[2016] EWCOP 35, [2016] COPLR 432, endorsing an earlier decision of District Judge Batten in A v B [2013] EWHC B39 (COP). It will only be in exceptional cases that it would be appropriate to dispense with service on an individual (or individuals) who is directly and adversely affected by an application. An applicant who is considering making an application to dispense with service is advised to familiarise themselves with the decision in
I v D and to note the warning set out in the final paragraph that the Official Solicitor may well on behalf of P seek a costs order against an applicant who, in unexceptional circumstances and for no compelling reason, apply to dispense with service on someone who is materially and adversely affected by an application for the execution of a statutory will.
Service abroad
7.29Service outside the jurisdiction is dealt with at COPR rr39-39H, introduced by the 2015 amendments. These rules supported by PD 6B. We do not address the issue of such service further here because it is an issue which only arises infrequently, and because PD 6B is comprehensive in its guidance.
Notifying P
7.30The applicant is responsible for notifying P of the issue of an application, within 14 days of the issue of the application, unless P has already been made a party.
15COPR r46. Decisions about whether to join P and, if P is joined, how he or she will be represented are governed by COPR r1.2/COPR r3A, which is discussed in detail in chapter 11. If P has been made a party, then the court will decide how service should take place.
16COPR r33(1). If P has not been made a party, then P must be provided with the information personally, in a manner that is appropriate to P’s circumstances, for example using simple language or visual aids.
17COPR r46. P must be given a form COP14, which should explain clearly the matter which the court has been asked to decide, and a COP5 (acknowledgement of service).
18PD 7 para 6. Once this has been done, form COP20A must be filed.
7.31If at all possible, it is good practice for a prospective deputy – especially one acting in a professional capacity without personal knowledge of P – to meet P and take steps to discuss the proposed application prior to making any application.
7.32COPR r49 allows an applicant or appellant or anyone directed to effect notification on P to apply to the court for an order dispensing with the requirement to comply with the provisions relating to the notification of P or requiring some other person to comply with those provisions. Moreover, the court can in any case, either on its own initiative or on application, direct that he must not be notified of any matter or document, or provided with any document.
19COPR r40(3). The court might dispense with the requirement to notify P if P were in a permanent vegetative or minimally conscious state, or if notification by the applicant is likely to cause significant and disproportionate distress to P.
20PD 7A para 9.Next steps
7.33Unless a specific application has been made on the basis of particular urgency, the court will take no steps during the 14-day period during which those who have been notified must make their response.
21COPR r72 allows 14 days after service for acknowledgment of the application by the person upon whom the application is served.7.34If no objections are received by the court during this period, the file will be referred back to the court for consideration, either by a judge or authorised court officer (depending on the nature of the application). If everything is in order at this stage, then the order will usually be made. If the application concerned the appointment of a deputy the applicant, or their legal adviser, will receive a letter notifying them that the court has made an order appointing them as deputy and advising them that the order will be released to them on the security bond has been put in place.
7.35If the application is urgent or contested further guidance as to the procedure is provided below in chapter 8.