The Mental Capacity Act 2005 has changed the role and work of the Court of Protection. The court’s jurisdiction now extends not only to financial and property matters but also to health and welfare issues and disputes relating to lasting powers of attorney.

The enlarged jurisdiction has introduced formal rules and procedures which must be followed. Court users therefore need to be familiar with the new regime, particularly where there is a degree of urgency, in order to ensure that applications are made in the correct form and contain the appropriate supporting information.

This invaluable new book for professionals working with incapacitated adults, including barristers, solicitors, local authority lawyers, health authorities and NHS Trusts, is specifically designed to address this need, by covering all relevant topics from the perspective of the Court of Protection user faced with making an urgent application. For each topic there is a law and practice section, procedural guide, precedents and draft orders.

Her Honour Judge Nazreen Pearce
District Judge Sue Jackson
With a Foreword by Denzil Lush, Senior Judge of the Court of Protection

General

• Introduction
• General Principles

 Personal Welfare and Deprivation of Liberty

• Welfare Decisions - Residence, Contact, Sexual Relations
• Deprivation of Liberty
• Urgent Medical Treatment
• Serious Medical Treatment 

Property and Affairs

• Suspension and Revocation of Deputy Appointment
• Enduring Powers of Attorney
• Revocation of Lasting Powers of Attorney
• Statutory Wills
• Enforcement
• Appeals 

Forms

• Court of Protection Forms
• Lasting Powers of Attorney Forms
• Enduring Powers of Attorney Forms
• Deprivation of Liberty Forms

"the text of the book is easy to follow; the use of bullet points and sub-headings makes accessing a specific area of intrest simple and straightforward"

"a useful addition to the library of any private client practitioner who does MCA 2005 work, even if they do not usually undertake complex or urgent litigation work"
Helen Clarke, Solicitor, Member of the Law Society Council

"a valuable handbook...will greatly assist people who need to make quick decisions with limited time to think, research and plan...the language is straight forward, and it is easily navigable via chapters and clear headings...The writers have distilled into clarity and apparent simplicity a complex area of law."
Gillian Geddes, Barrister, Middle Temple Lane Chambers

It is now over two years since the implementation of the Mental Capacity Act 2005. Despite some well-publicised criticisms, it has achieved the fundamental objectives of improving perceptions of incapacity and how they should be approached. It has settled the principles which underpin decision making for those who lack capacity by incorporating common law jurisprudence and best practice into statute. It has unified the previously disparate areas of finance and personal welfare (including medical treatment), and brought them under the jurisdiction of a new Court of Protection with its own specialist judges. The legislation is supported by a statutory Code of Practice, and the court procedure has a framework of rules and practice directions.

This work introduces the practitioner to the new legislation and the approach of the courts. It explores current case law. It provides a practical guide to procedure and drafting, invaluable to practitioners at any level of experience. Its emphasis on the urgent application is of particular importance. The Court of Protection has not been regarded as the first port of call for an emergency remedy. Traditionally, it provided intensive care rather than first aid. However, the new legislation has brought different challenges. Orders resolving emotionally charged disputes about health or personal welfare may need to be sought urgently. Previously, financial orders were highly restrictive and protective of the person who lacked capacity. The move towards empowerment which enables autonomy and flexibility through the use of unrestricted orders, has highlighted associated risks of misuse by the unknowing and abuse by the unscrupulous. The use of emergency powers to protect the welfare and assets of those who lack capacity is therefore of increased significance in the new arena.

This handbook provides an essential easy reference. Its success is attributable to the expertise and experience of its contributors. Nazreen Pearce is a retired circuit judge and well-known writer of legal text books. Susan Jackson is a respected nominated judge of the Court of Protection who worked with me at the Court’s Central Registry in Archway for two years overseeing the implementation of the Act.
The law, so I am reliably informed, is stated as at 1 March 2010.

Denzil Lush
Senior Judge of the Court of Protection