A Better Fit: The New Court of Protection Rules

The Court of Protection is the specialist court dealing with the property, money, physical welfare and sometimes even the liberty of those without the mental capacity to make their own decisions. These “protected persons”, usually known in the Court Rules as “P", range from very young children to the very elderly, and the Court’s decisions take in many forms of mental incapacity, from brain damage and severe autism to Alzheimer’s disease and other forms of dementia.

A lot of the Court’s work is routine and administrative, but it also makes life-changing or life-altering decisions on a daily basis: for example, whether an elderly person with dementia should remain in a particular care home against the wishes of his close family, or how damages awarded to a brain-damaged adult should be best spent (or saved) to look after her best interests. Sometimes the decisions are literally those between life and death, such as whether a hospital should withhold treatment to a mortally ill child. 

Sweeping and important changes are about to be made to the Court of Protection Rules. From 1 July, the Court of Protection (Amendment) Rules 2015 will come into force. These new rules extensively amend and in some cases completely over-write the existing 2007 Rules, with significant practical consequences for lawyers and litigation support in this area.

Since it was set up in 2007, the Court has grown in importance and its workflow has steadily increased, leading to criticisms from the press, the legal profession and the many non-lawyer Court users that its procedures were inefficient and slow – even, at times, incomprehensible. Still more importantly, the Court was often seen as being remote from the protected person, whose life could be affected by Court decisions that s/he only heard about after the event, and in which s/he took no active part.  

As a result, the 2007 Rules have become a less-than-perfect fit for the business of the CoP in the second decade of the 21st century, and the time has arrived for some extensive re-tailoring. In April, the rules about appeal from CoP decisions were altered to make the appeal routes clearer; now, the July amendments aim to speed up procedure, cut away some of the bureaucracy and expense, involve the protected person where that is possible, and bring the procedure in the CoP much more in line with the family court.

The 2015 amended Rules now oblige the Court to consider whether the protected person should either be able to take part in the proceedings personally, or be represented by someone else. They introduce for the first time the “accredited legal representative”, a lawyer who can be appointed either when the Court needs to make an order urgently and a litigation friend cannot be appointed in time, or when the issue before the Court is a narrow one. The President of the Court of Protection will set up and monitor the scheme which will accredit lawyers for the scheme, but no further details are available at present.  

A large number of the existing rules have also been amended to speed up the processes of the Court. The complex rules about when permission was needed to make an application about the protected person’s property and affairs have been completely removed: now an applicant does not need permission to make any application concerning the person’s property, or if the question relates to that person’s liberty.  In fact, from 1 July the need for permission to apply will be the exception rather than the rule: this is a very significant shift from the Court’s previous procedure.

In the past the Court has been very heavily criticised by its users, particularly its non-lawyer users, for the speed (or perhaps more appropriately the lack of it) with which applications proceeded. The new Rules cut down on the time limits for serving and responding to applications, and if you are involved in Court of Protection matters, it is essential to know about these changes, and also the changes to the Rules on the service of documents.

One further major change is that some of the Court’s forms, particularly the application notice COP1 and the annexes to it, have been completely redrafted. This obviously affects every application issued after 1 July of this year, and the new forms need to be used in all cases. Users can check that they have the correct form by looking for the date “7.15” on the front page just below the form number.

Those who work in this field should note that the changes to the Rules are still a work in progress. A “tranche 2” is promised, including changes to the rules on expert evidence and on the reporting of cases.

More information, including an update on the amended Rules and a link to the new forms on the gov.uk website, can be found at www.courtofprotectionhandbook.com.

© Jocelyn Anderson 2015