A unique book for lawyers who specialise in family matters (such as children, care work or matrimonial finance) which explains the relevance of the Court of Protection to their work and which provides users with the relevant law and procedural knowledge needed to properly advise their clients where the need arises.
The Family Lawyer and the Court of Protection also explains how to make an application to the court, provides a step-by-step guide to the appropriate process and includes fictitious case studies suggesting solutions to situations that may arise.
An invaluable guide for all family advisers, including solicitors, barristers, local authorities, social workers, Citizens Advice Bureaux, and voluntary organisations, faced with a matter which requires the involvement of the Court of Protection.
- The relevance to family lawyers of the Court of Protection and the impact of its jurisdiction on their work
The Mental Capacity Act 2005
- An introduction to the relevant provisions of the Act, eg the definition of mental capacity, best interests and the role and function of a deputy
- How the MCA 2005 differs from the Children Act 1989
The Court of Protection
- Its work; jurisdiction; and the orders it can make
- The approach of the court to applications and whether this differs to the approach in family proceedings
The Court of Protection Rules
- An introduction to the rules governing applications in the Court of Protection
The Public Guardian
- His role, function and duties; how he works and his relevance to the family lawyer
The Official Solicitor
- His role in family proceedings and the Court of Protection; how he becomes involved in proceedings and his approach
Children and the Court of Protection
- Consideration of the extent to which matters involving children fall within the Court of Protection jurisdiction
Making an Application in the Court of Protection (with worked examples)
- Health and welfare applications
- Property and affairs applications
Practical Case Studies
- Problems that arise in specific cases by reference to case studies
Deprivation of Liberty
- Its relevance to family cases
- Practice and procedure
The Public, the Media and the Court of Protection
- A consideration of whether cases should be in public or not
- The role of the media in family and Court of Protection Justice
- A contrast between publicity in family and Court of Protection cases
- A consideration of how the jurisdictions work together and what lies ahead
- Issues that remain unresolved; reform
- Court of Protection Forms and Court Orders
- Mental Capacity Act 2005
- Court of Protection Rules 2007 and Supplementary Practice Directions
"The busy family law practitioner is likely to need this book if he or she deals with such cases where separating parents have a child with brain damage or learning difficulties, or one of the parties to a marriage lacks capacity....The book covers issues commonly found in practice, such as -what do you do if you cannot find a doctor and will a judge always follow "expert" advice and what weight will be given to a disabled person's wishes?....These are the vital practical nitty gritty questions that clients need answers to and fortunately this book covers...much is contained in this book in a readable clear way....I suspect this book will have a wider application than just family lawyers and will be of value to many lawyers who needs a clear, realistic book of reference." Law Society gazette
"This guide for the family lawyer is a useful and informative place to start the process of becoming well-informed about the work of the Court of Protection ... easy to read and is presented in a format that allows one to dip in and out ... an accessible source of advice on the work of the Court of Protection ... extremely portable and so could be taken to court." Journal of Social Welfare and Family Law
"The definitive guide to the workings and process of the Court of Protection … exceedingly useful work of reference … highly recommended" Phillip Taylor MBE and Elizabeth Taylor, Richmond Green Chambers
"District Judge Marc Marin has produced a unique book for professionals who deal in family matters - not just the lawyers but advice workers and local authorities. It's valuable, highly digestible and practical and what hits you about it is that the author obviously does the business at the coal face.." Solicitors Journal
"As an entry point into this area of work this book is really helpful. It helps the reader to understand the bare bones of the statutory and procedural framework, and developing thos and practicees in this emerging arena....a handy pocket sized reference guide for the core material...Provides a clear explanation of the overlapping jurisdictions of the Court of Protection and the Family Courts, and guidance as to how best to choose between or combine the two courts..the book contains a number of worked through case studies and sample forms, which are helpful in jolting family practitioners out of misplaced assumptions about how things might be done, based on family court experience." Lucy Reed, Pinktape
"The inspiration to buy the book is likely to be when a straight forward family matter strays into the C o P jurisdiction" The Review
The idea of writing this book came to me when I was hearing a family case. An issue arose which made it obvious that the case needed to be transferred to the Court of Protection. Obvious, that was, to me but not to the experienced lawyers in the case. They admitted they knew nothing about the Court of Protection. And why should they; after all, issues relating to family and mental capacity law have always been regarded as two distinct areas of law and practice.
With this in mind, I have written this book in the hope that the reader will emerge with a good working knowledge of the Court, its procedure and the law it applies.
Writing a book gives the author an opportunity to give thanks to those who have helped him and to acknowledge those who have enriched the contribution to the Court of Protection.
It would therefore be wrong if I did not mention my colleague District Judge Gordon Ashton. His care and feeling for this jurisdiction cannot fail to make an impact on those who meet him and definitely on those who have the privilege to work with him.
Sitting at Archway Tower also means that I regularly have the opportunity to learn from our Senior Judge, Denzil Lush. Not only does he have the answer to every question but there is never a lack of anecdotes to illustrate the point. The Court of Protection is a richer place with his presence.
I also thank Greg Woodgate and everyone at Jordans for their help and encouragement. A dedicated author cannot survive without an even more dedicated editor and publisher.
Last but certainly not least, however, I thank my wife Ayelet and our wonderful children for their encouragement, ideas and inspiration. Without them, I would achieve little.
Finally, the law is stated as at May 2010.
Nearly three years ago, on 1 October 2007, the Mental Capacity Act 2005 came into force and, despite criticisms in the press, only some of which are justified, it seems to have achieved the desired objective of raising the profile of mental capacity as a discrete area not only of the law, but also of medicine and social work.
The Act sets out clearly the principles which underpin decision-making on behalf of those who lack capacity, and has enshrined common law jurisprudence and best practice in statutory form. It has also attempted to unify the previously distinct areas of property and financial affairs and personal welfare (including medical treatment), and to bring them under the jurisdiction of a new Court of Protection with its own specialist judges.
This book does precisely what it says it does on the label. It is a book for family lawyers about the Court of Protection, and Marc Marin has the ideal credentials to have written it. He is a solicitor and has been a district judge, specialising in family law, since 2003. He was nominated from Day 1, 1 October 2007, by the President of the Family Division, who incidentally is also the President of the Court of Protection, to exercise the Court’s jurisdiction under the Mental Capacity Act, and sits at the Court’s central registry at Archway Tower, London N19, one week in five, on average. I am sure that this book will be of considerable use and interest not only to family lawyers, but also to lawyers generally, and even doctors and social workers.
Senior Judge of the Court of Protection
1 June 2010
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