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Court of Protection Practice 2016

FROM £209.00

'Court of Protection Practice goes from strength to strength, having worthily achieved in relation to the Court of Protection the same dominating position as its stable mate, The Family Court Practice, in relation to the Family Court.'
Extract from the Foreword to the 2015 Edition by Sir James Munby, President of the Court of Protection

A 10.3% VAT charge will be added to this product at the checkout as it includes a CD-ROM.

This popular major work, available as a print or online subscription, provides a detailed and authoritative guide to the enhanced jurisdiction with a similar style and format to The Family Court Practice and Civil Court Service.

Written by a team of lawyers involved in the implementation of the Mental Capacity Act 2005, Court of Protection Practice provides valuable procedural guidance for all judges hearing cases in the Court of Protection.

The Court of Protection Practice retains its well-established format as the leading court reference work governing this fast-developing jurisdiction, with a status akin to its sister publication The Red Book. This new edition has been further enhanced and updated throughout, thus ensuring that practitioners have all the latest developments at their fingertips.

What’s New for 2016?

  • Latest Rules, Practice Directions and Court Forms
  • New Procedural Guide on Statutory Wills
  • International matters section completely revised with an explanatory Chapter 
  • Full coverage of the Scottish incapacity jurisdiction through a discrete Chapter and an Appendix containing statutory material and guidance
  • Anticipatory Chapters added for Northern Ireland and the Republic of Ireland pending new legislation
  • Transparency and Case Management Pilot Schemes
As the jurisdiction evolves, it is vital for practitioners to have up-to-date information in order to act efficiently and accurately for clients.
  • Text – based on Mental Capacity: Law and Practice (Jordan Publishing), which provides an entry point into the book
  • Legislation – all relevant primary and secondary legislation appropriately annotated including:
    • Mental Capacity Act 2005 (as amended)
    • Court of Protection Rules 2007
    • Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007
    • Mental Capacity Act 2005 (Transfer of Proceedings) Order 2007
    • Practice Directions, including the new Transparency Pilot Practice Direction and the Pilot Practice Directions on Case Management and Section 49 Reports.
    • Codes of Practice
  • Procedural Guides – outlining the steps for making various court applications including:
    • Application to register an enduring power of attorney
    • Application to register a lasting power of attorney
    • Application for appointment of a deputy relating to property and financial affairs
    • Application relating to personal welfare matters
    • Proceedings in the High Court or a County Court involving a protected party
    • Resolving doubt about capacity under CPR 1998
  • Forms with Guidance Notes – covering the Court of Protection, Lasting Powers of Attorney and Enduring Powers of Attorney
  • Precedent Orders – drafts that practitioners are encouraged to submit to the Court during case management, including the new Transparency Pilot Order
  • First Instance Case Summaries – summarising how the law is being interpreted and indicating areas of difficulty
  • International Dimension – information regarding relevant procedures etc in other countries
  • Other Materials – including all of the latest Public Guardian Practice Notes
  • Useful Information – websites, address details etc
"The definitive work in a difficult area of law ... easy to use"
Phillip Taylor and Elizabeth Taylor of Richmond Green Chambers
Read the full review

Reviews of the previous editions

"an essential volume ... 'essential for every judge and practitioner in the Court of Protection.' ... wealth of new material"
Click here for the full review
Phillip Taylor and Elizabeth Taylor of Richmond Green Chambers

"This is the essential up-to-date guide to its enlarged jurisdiction....provides all relevant statutory material in this area, together with new material for 2012....the book offers any amount of resources for further research....if you're a practitioner in this or related fields, the book and the accompanying CD ROM can only enhance your understanding of and expertise within this complex and sensitive area of law"
Click here for the full review
Phillip Taylor and Elizabeth Taylor of Richmond Green Chambers
"a useful purchase for someone who regularly appears in the Court of Protection, for the sheer convenience of the collation of the relevant legislation, court forms and supporting documentation"
Law Society PS Magazine

"a detailed and authoritative guide to judges as well as practitioners...a must-have purchase if you practice in this difficult area of law"
Click here for the full review
Phillip Taylor MBE

Reader Comments
"I have been using this since it was first published. It contains a mine of useful and essential information; I refer to it regularly. It sits on my desk for every application before me - it is as useful as The Family Court Practice - I can think of no higher praise."
HHJ Martin Cardinal, Nominated Judge of the Court of Protection

“offering additional and valuable insight … indispensible … a full armoury in one place – a comment with which we cannot help but agree … invaluable”
Phillip Taylor MBE and Elizabeth Taylor, Richmond Green Chambers

"fabulous contents ... essential ... extremely useful ... remains reasonably priced for what you gain ... well put together ... essential for practitioners ... a must for any library ... simply superb."
Penny Booth, Honorary Research Fellow at Liverpool University

"I wanted to let you know how useful I have found the book 'Court of Protection Practice' by Ashton and others, It contains a really useful collection of primary source materials and the commentary is excellent. I particularly appreciate the way that the authors have provided a detailed history of the various matters covered in the text ... The book really is very good. It's a 'must have' work for anyone who does either finance and property or health and welfare work and is advising clients about C of P issues. I shall look forward to seeing the new edition in February 2015."
Glenn Campbell, Deans Court
Preface to the First Edition
Some 20 years ago the Law Society’s Mental Health Sub-Committee drew attention to the legal vacuum in which people who lacked mental capacity were obliged to exist. This provoked the Law Commission to take the topic on board and, after several years of consultation, recommendations were made for a statutory mental incapacity jurisdiction. Different governments then pursued further consultation whilst lacking the will to introduce legislation, but pressures to do so became overwhelming with the introduction of community care policies, disability discrimination laws and ultimately human rights legislation.

The Mental Capacity Act 2005 is the result, but a consequence of the changed climate is that it must meet higher standards than were expected when the need was first identified.

 In addition to making provision for delegated decision-making and setting out the principles to be applied for assessment of capacity and a best interests approach, the Act establishes a new Court of Protection, with nominated judges and a regional presence.

 As a contributor on disability issues to Jordans The Family Court Practice the ‘Red Book’) and Civil Court Service (the ‘Brown Book’), I perceived the need for a similar volume for those who practice in the new Court of Protection. So with the small team of ‘experts’ who wrote Mental Capacity: The New Law as an introduction to this legislation, and joined by District Judge Marc Marin who sits in the Court of Protection at Archway, we have launched this further volume with the support of Jordans. In addition to the updated chapters from our previous work, it contains the Act, Regulations, Court Rules and Practice Directions (with our annotations where appropriate), together with the Code of Practice, Lasting Power of Attorney and Court Forms and some Procedural Guides. We hope that the Court of Protection Practice 2009 will assist in the development and growth of this new jurisdiction and provide in a single handy volume all that those who work in or appear before the Court routinely need to accomplish their roles.

 I wish to thank my co-authors for their dedicated contributions, each being highly experienced in the topics that they have covered.We have endeavoured to state the law as at 1 February 2009 whilst anticipating prospective changes coming into effect in April 2009. But this is an evolving area with new Lasting Power of Attorney forms, changes to the supervisory regime and a review of the working of the Rules all expected in 2009. It is hoped that, once this work is established, it will be updated at intervals so as to remain a reliable practice book, perhaps also identified by its colour!

 Gordon R Ashton
December 2008
Foreword to the 2015 Edition by Sir James Munby, President of the Court of Protection

Court of Protection Practice goes from strength to strength, having worthily achieved in relation to the Court of Protection the same dominating position as its stable mate, The Family Court Practice, in relation to the Family Court.

In his Foreword to the First Edition, Sir Mark Potter P predicted that it would become an essential volume for those who work in or appear before the Court of Protection. He was of course correct, for Court of Protection Practice has indeed become essential for every judge and practitioner in the Court of Protection.

It was in Sir Mark’s time as President that Charles J and Proudman J produced a report on the Court of Protection which, welcomed by everyone involved with the Court, spent far too long gathering dust. Now at last things are happening. An ad hoc Court of Protection Rules Committee, chaired by Charles J, the Vice Presidentof the Court of Protection, is at work, with visible results.

2014 was dominated not just by the long-awaited decision of the Supreme Court in the Cheshire West case but also by the need to grapple with the procedural implications of thatdecision for the Court of Protection. The new ‘streamlined’ process for dealingwith deprivation of liberty cases is now up and running, facilitated by the welcome recruitment from the Tribunals judiciary of additional judicial assistance for such cases.

2015 will, no doubt, see further change directed to improving the procedures of the Court of Protection. The ad hoc Courtof Protection Rules Committee has much to do and is working as fast as possible.

For too long now, justified criticisms have beenbuilding up about the way in which the Court of Protection manages cases involving personal welfare, in particular in the heavier cases. Two things need to be done.

The first, long recommended by Charles J, is the regionalisation of such work, so that cases can be heard more locally, more quickly and, unless the case requires to be heard by a judge of the High Court, by the local judge best suited for the particular case.

The second is what has emerged as the pressing need to adopt in the Court of Protection in cases involving personal welfarethe techniques which have proved so successful in the Family Court in cases involving children: the allocation of the case, wherever possible, to a single judge; and the robust and vigorous case management of the case by that judge in accordance with a timetable fixed by the judge at the outset and, in the light of the issues identified by the judge at a case management hearing, listed within days of the proceedings commencing. At the same time, and again in the same kind of way as has proved so successful in the Family Court, ways must be found to control the over-ready recourse to over-detailed and on occasion sunduly prolix expert evidence. The effects in the Family Court have beenstriking, not least the astonishing reductions in the times such cases take before reaching finality. The same, I have no doubt, must and can be achieved in the Court of Protection.

All these ongoing developments have been expertly captured in the 2015 Court of Protection Practice as they will be, I am sure, in the future annual editions of this invaluable work.

Sir James Munby
President of the Court of Protection
January 2015

District Judge Marc Marin
Nominated Judge of the Court of Protection
The Family Court and the County Court at Barnet and First Avenue House
Claire van Overdijk
Barrister, No 5 Chambers
LLM teaching fellow, Faculty of Laws, University College London
Alex Ruck Keene
Barrister, 39 Essex Chambers
Honorary Research Lecturer at the University of Manchester
Visiting Research Fellow at the Dickson Poon School of Law, Kings College London
Martin Terrell
Partner, Thomson Snell & Passmore

International Contributors:

Richard Frimston
Partner, Russell-Cooke LLP
Adrian D Ward MBE
Partner, TC Young LLP, Scotland

Case Summaries Editor:
Annabel Lee
Barrister, 39 Essex Chambers

Past Contributors:
Penny Letts, OBE
Policy Consultant
Laurence Oates
Official Solicitor to the Supreme Court 1999–2006


Last year in this Introduction I identified four significant challenges facing our mental capacity jurisdiction. Two relate to compliance with international Conventions and the other two affect the credibility of our Court of Protection. I now comment on the longer-term implications of these challenges.

European Convention on Human Rights

The Court has interpreted this Convention as requiring that care arrangements which deprive individuals of their liberty need a system of authorisation prescribed by law. This has become an expensive distraction from the business of providing good quality care best suited to the needs of the individual. It has proved to be fertile ground for lawyers but damages the credibility of the mental capacity jurisdiction in the eyes of disabled people and their carers. There remains uncertainty and disagreement as to what amounts to a deprivation of liberty and the care environments in which it must be authorised. Resources that should be devoted to the delivery of care are being diverted into reassuring lawyers (and the public if they are concerned) that incapacitated individuals are not being unnecessarily detained against their wishes even though they may not be capable of forming wishes or exercising their liberty. Their right not to be deprived of liberty becomes more important in law than any rights they may have to be provided with care and support, and the rights of involuntary family carers are subjugated to the freedom of the person cared for notwithstanding that their own freedom is impaired by the responsibility of caring. It is not clear where this is leading but it is hoped that the Law Commission will soon produce a workable solution so that the jurisdiction may continue to make inroads into society without this impediment.

These challenges have highlighted the question of how incapacitated persons should participate in proceedings. Making them a party and appointing a litigation friend to represent them is the usual procedure, but the position of an incapacitated person subject to Court of Protection proceedings differs from that of other incapacitated parties and mirrors that of children in proceedings that concern their future. Who can impartially fulfil the role of litigation friend? There are generally enough parties involved and with an inquisitorial approach and appropriate reports it is sufficient in most cases to resolve matters without seeking to appoint someone to speak on behalf of the incapacitated person. My approach as a nominated judge was to see the incapacitated person whenever possible and surely this is consistent with the principles of the 2005 Act. When we were writing the Rules, I was not successful in having this approach supported but there are signs almost a decade later that it is beginning to find favour. Of course, guidance would be needed as to the purpose and form of any such meeting but that is part of the evolution of the Court.

UN Convention on the Rights of Persons with Disabilities

Our jurisdiction was groundbreaking when it was first enacted and few if any could find fault in it. With the benefit of experience since then, new approaches to decision-making are now being promoted, even to the extent that decisions should not be delegated. The movement towards supported decision-making surely only relates to the stages before the individual is deemed to lack capacity and is relevant to how that state should be determined. Support should have been attempted before concluding that this stage has been reached, but thereafter the only options are delegated decision-making or uncertainty. Perhaps we should focus on the process and not be distracted by whether the decision has been ‘delegated’ or the use of the term ‘supporter’ as a replacement for ‘decision-maker’. Support is the means of ascertaining the ‘best interpretation’ of the person’s ‘will and preference’ and adopting this as the basis for decisions moves closer to the ‘best interests’ approach if we cease to relegate the ‘wishes and feelings’ to a contributory role so that they may be overridden by what a decision-maker thinks is best. The advantage of that approach is that there remain other criteria in the checklist on which to base a decision where it is simply not possible to discern a personal choice. It is not too late for the Court to revise the emphasis and pursue a more ‘person-centred’ approach. We have much to learn about the role of support in the decision-making process and in this way our jurisdiction will mature.

I remain of the view that our mental capacity jurisdiction is a reasonable adjustment that, far from discriminating against mentally disabled people, enables them to enjoy a lifestyle comparable with that of people without this impairment. But the ‘diagnostic threshold’ is an obstacle to the further development of this valuable jurisdiction for vulnerable adults and if it was removed or re-interpreted the inherent jurisdiction of the High Court which has no statutory basis would be largely superseded.

Access to justice

I was a member of the judiciary through a couple of decades when access to justice was the mantra and I used this to advocate access for disabled people. Now the emphasis seems to be on the denial of access through higher court fees, withdrawal of comprehensive legal aid and the closure of smaller courts. The concept of justice being delivered as a social service has been abandoned and the barriers to access to the courts are formidable. Could it be that we are moving back to the days when, in the absence of a mental capacity jurisdiction, people did whatever they could, lawful or otherwise, to resolve issues?

The virtual withdrawal of public funding creates a challenge for the nominated judges. This is counter-productive because applications take up more time and hearings become protracted. It has become necessary for courts generally to adjust their procedures to accommodate a preponderance of unrepresented parties. These parties generally desire a local outcome in a timely and economical manner under a procedure they can understand and without inflaming an already confrontational situation. An early directions hearing, possibly by telephone but ideally with the parties present, may result in considerable progress and the allocation to track approach in the Civil Procedure Rules 1998 has much to commend it. Inevitably, there are situations where the law needs to be clarified, but few cases in the Court of Protection set a precedent or require an adversarial hearing and an inquisitorial ‘small claims’ approach may be sufficient when lawyers are not involved. There is light at the end of this tunnel because an overhaul of the Rules to get cases resolved speedily and proportionately is now contemplated following a significant case management pilot.

This government’s reluctance to allow courts to be utilised would be understandable if alternative dispute resolution procedures were readily available but we have not yet reached that stage for the Court of Protection. A contested hearing is the last resort, but the prospect frequently leads to a desire for conciliation or mediation and the Court should be given power to refer a case to the OPG for this purpose. The first Public Guardian did not see this as part of his role but fortunately that attitude has changed and a mediation scheme is now being tried. But there are limitations – the objective is to identify the ‘best interests’ of the incapacitated person and reaching agreement between members of a dysfunctional family vying for control may not achieve this.

The ‘secret court’

Under a new initiative the Court of Protection is bowing to the demands of certain elements of the press that hearings should be in public. This will be for a trial period and is subject to restrictions on identifying the parties involved. It will be interesting to see where this leads. There is a perception that the press are only interested in publishing salacious stories and those about well known personalities but there are also concerns that the work of the Court is not well enough known. Perhaps a better public image will emerge from serious reporting of some of the more challenging cases or even routine ones. Quite apart from the press, my own concern based upon experience in the county court is that it is not the public who attend but the supporters of a party, which can be intimidating to the other party. If I were involved in a family dispute about the future of my elderly parent, I would not wish this to take place in a public arena and would question the motives of anyone who did.


Some of these sentiments may not find favour with the majority of those who rely on this book, but then I have lived the world of the lawyer/advocate and then the judge, and am now moving towards the viewpoint of the consumer. We must never overlook the fact that it is for the benefit of that person, not the lawyers, that this valuable jurisdiction exists. It is like an iceberg with most of the work taking place beneath the surface. Perhaps a better analogy would be a pyramid because the evolution taking place at the top in the appeal courts should not distract us from the beneficial social changes occurring at the bottom in the lives of mentally disabled people and their families. This is a gradual process: it may be a decade since the legislation was enacted but it is a quarter of a century since a small Law Society sub-committee persuaded the Law Commission to embark upon its consultation. That was ahead of the times because we did not then have an enlightened approach to persons with disabilities, there was no ‘community care’ and there was no legislation on human rights or equality. The climate has changed and is continuing to do so.

Our contributors

As always I wish to thank our small team of contributors for their dedication and also James Beck from the Office of the Official Solicitor for continuing to support this work. We are indeed fortunate that one of our contributors is on secondment to the Law Commission to resolve the DoLS issue, another is taking a leading role in the case management pilot and a third has been appointed a consultant to the Council of Europe on a review of implementation of Ministerial Recommendation (2009)11 on Principles Concerning Continuing Powers of Attorney and Advance Directives for Incapacity. The comment in this work is therefore written by persons at the forefront of the development not only of our jurisdiction but of the evolution of the approach to decision-making across a wide range of jurisdictions throughout Europe and the free world.
With all these prospective changes, the 2017 issue of this volume is likely to look very different than the present one. We have endeavoured to state the law as at 1 December 2015 with some later additions. Constructive comment on the development of this volume would be welcome and should be sent to the publishers.

Gordon R Ashton OBE
January 2016

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