When a person loses mental capacity and does not have a suitable Power of Attorney in place, the Court of Protection can intervene to make decisions on their behalf.
Applications may be made to the Court of Protection either for the appointment of a Deputy to make ongoing decisions for that person, or for the Court to make a specific one-off decision.
An application concerning a person who lacks mental capacity (commonly referred to as "P") is not straightforward, nor is it intended to be. The decisions the Court of Protection can make are often significant and life-changing. The Court can authorise, amongst many other things:-
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The sale of P’s property;
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Appointment of family members, friends or professionals to manage P’s money on their behalf; and
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Decisions about P’s ongoing medical care.
To ensure the Court is only asked to make decisions about P as a last resort and importantly, that P and their family have the opportunity to participate, safeguards are built into the application process. One of these safeguards is the requirement to notify certain persons that an application has been made about P.
What are the requirements?
In most cases, an applicant must notify specific people that an application has been made to the Court of Protection. The notice must explain:
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That an application has been made;
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What the application relates to; and
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What order(s) the applicant is asking the Court to make.
Who must be given notice?
Practice Direction 9B sets out a descending list of people who have “presumed closeness” to P such that they should be notified of an application. An applicant should start at the top of the list and work downwards.
(a) spouse or civil partner;
(b) person who is not a spouse or a civil partner but who has been living with P as if they were;
(c) parent or guardian;
(d) child;
(e) brother or sister;
(f) grandparent or grandchild;
(g) aunt or uncle;
(h) nieces or nephews;
(i) step-parent; and
(j) half-brother or half-sister.
Generally, at least 3 people must be notified of an application. However, if there are more than 3 people in one of the categories of persons relied upon, then all in that group must be notified.
In exceptional circumstances, it is possible to ask the Court to waive the requirement to notify a certain person. There must be a compelling reason to do so.
In some cases, P may have a closer relationship with persons who are not relatives. Where this applies, it might be appropriate to notify them instead of, or as well as, those with “presumed closeness”.
What must the person being served do?
In many cases, a person will simply need to sign their agreement to the application within 14 days of being notified.
If a person does not agree with the application, they will have the opportunity to oppose it and set out why.
In the absence of consent or an objection, the Court will assume agreement to the application.
The procedural steps involved in making a Court of Protection application can be difficult to navigate; it is important to get it right, as mistakes can lead to unnecessary delays in the Court processing the application. If you are making an application to the Court of Protection, or have received notice of an application and would like advice on your options, our specialist Court of Protection team can help.
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