Mental Capacity Act Practitioners Forum

1. Mental Capacity ActPractitioners Forum The Court of Protection

2. This presentation will cover: • Look at the role of the C.O.P. • Outline how to apply and fees • Look at standard and emergency applications • Identify what medical treatments need to be approved by the Court • Examine the role of Deputies and their supervision

3. What is the role of the C.O.P? • Generally the court will make decisions in disputed or complex cases: • Whether someone has the capacity to make decisions • Whether an act done or proposed is in someone's best interests • Whether Lasting Powers of Attorney or Advanced Decisions are valid • Whether an attorney or deputy is acting in someone's best interests • Whether undue pressure or force was used to appoint an attorney

4. What power does the C.O.P. have? • The Court has the same powers, rights and privileges and authority as the High Court • The Court will either make the decision itself or appoint a deputy to make it • The Court must make its own decisions where there is no EPA or LPA and a financial decision must be made • The Court must make its own decision if it is necessary to make a will or amend an existing will • It is a Superior Court of Record and is able to set precedents that must be followed in future cases • It is made up of numerous departments each one having a different role

5. First Point of Contact The Administration Unit • Processing of applications • Handling pre-hearing enquiries • Dealing with attended hearings On receiving an application they will contact you within 25 working days Where no hearing is required a direction will be given within 21 weeks When a hearing is required a hearing will be set within 15 weeks • There are courts in London, Birmingham, Cardiff, Manchester, Newcastle, Preston

6. General time scales People contacting or visiting the C.O.P. can expect: • A response to letters, faxes, e-mails within 15 working days • If you request a form or printed advice they will be posted within 1 working day • If you make a complaint you will have a full response within 15 working days • LPA’s will be registered within 5 days of the investigation stage being completed

7. How to contact them Office of Public Guardian Archway Tower, 2 Junction Road London N19 5SZ Telephone 0845 330 2900 Fax 020 7664 7705 E-mail customerservices@publicguardian.gsi.gov.uk

8. Remit of the Court Serious Cases You must apply to the court if the following decisions are required: • Withholding or withdrawing artificial nutrition and hydration to someone in a permanent vegetative state • Donation of an organ or bone marrow • Non therapeutic sterilization • Termination of pregnancy • Dispute about serious medical treatment and there is lack of agreement amongst parties

9. Serious Medical Treatment • Treatment which involves the use of a degree of force or restraint • Experimental treatment • Ethical dilemmas • Treatments which may cause serious or prolonged pain • Treatments which have major consequences on future life choices In these cases discuss the application before hand with the Official Solicitor on 020 7911 7127

10. Who will decide? • Withholding or withdrawing artificial nutrition and hydration to someone in a permanent vegetative state • Ethical dilemmas in an experimental procedure or one not previously heard by a court President of the Court of Protection

11. Who will decide? • Serious Medical Treatments President of the Family Division Or Chancellor of the High Court

12. Remit of the Court Again the Court can be involved in disputed or complex cases such as: • Where a person should live • The level of contact with certain people • Prohibiting contact with a certain person • Control or management of property • Sale, exchange, gift, disposal of property • Purchasing property • Continuing a contract • Discharge of debts • Making a will • Conducting legal proceedings on someone's behalf • Appointing a deputy • Withdrawing money from a bank account in the absence of a second signatory or LPA

13. Taking Cases to Court • Application is via forms on the website www.publicguardian.gov.uk • If the Court feels the issue is not complicated enough they will refer the case back to you for mediation • Cases are held in private only invited people can attend

14. Urgent Applications • Healthcare staff can give life sustaining treatment while the court comes to decision • Emergency 24 hour procedures are available in specific cases via the Royal Courts of Justice • The Court will make a decision about a limited type of case

15. Urgent Applications • Urgent Medical Treatment • Preventing someone being removed from the place where they live • Executing a financial transaction where someone's life expectancy is extremely short • In office hours - Urgent Business Officer on 0845 330 2900 • Out of Office hours – Security Office on 020 7947 6000

16. Fast Track Procedure (within 5 -10 days) • Property sale or purchase where there is immediate risk of losing a buyer • Appointment of new trustee to sell a property where there is immediate risk of losing a buyer • Investment of money where there is a deadline approaching • You need the release of someone's funds to pay for arrears of care home fees or someone being discharged from hospital needs own home adaptations • If you have not already made an application you can apply for an interim direction via the fast track business officer on 0845 330 2900 • If you have already made an application you can apply for an application within proceedings via the fast track business officer on 0845 330 2900

17. Court of Protection Fees • Single fee for all applications £400 • Oral Hearing fee £500 • Appeal fee £400 • Copy of a document fee £5 • Copy of certified document fee £25 • EPA registration fee £120 • LPA registration fee £150 • Application to search the EPA/LPA register fee £25 (unless NHS/LA/IMCA requests information – when it is free)

18. Fee exemptions and remissions • Receipt of means tested benefits • Income support • Income based job seekers allowance • Pensions guarantee credit • Working tax credit claimed with child tax credit or disability element or severe disability element • Housing benefit • Council tax benefit • You must not be in receipt of damages award greater than £16,000 • Gross income less than £16,000 • Hardship may be caused • You can also apply to delay payment if unable to pay immediately

19. Additional Powers of the Court • Can commission a report from the NHS, Local Authority or Care Home • Appoint a Court of Protection Visitor to interview the person and take copies of records • Appoint a Litigation Friend to conduct proceedings on someone's behalf

20. Who can apply? • The person who lacks capacity (or is alleged to lack capacity) • Someone with parental responsibility if person is under 18 years of age • An attorney under an EPA/LPA • A court appointed deputy • A person named in an existing court order • An NHS Trust proposing serious medical treatment • A local Authority making an application in relation to concerns about a vulnerable adult Any other person applying (i.e. family, friends, carers) will need permission from the Court to do so

21. Lets take a look at Deputies • Someone appointed by the Court to make substituted decisions • Can only make the decisions the Court has ordered them to • Cannot delegate their duties to others

22. Lets take a look at Deputies Deputies can not • Prohibit someone from having contact with the person • Change the individual responsible for the persons healthcare • Override an existing LPA • Refuse consent to life sustaining treatment

23. Supervision of Deputies • Supervised by the Supervisory Division of the C.O.P. • Type 1 – Highest supervision • Type 2 – Lower supervision • Type 3 – Minimal supervision Regime depends upon: • Complexity and value of the persons estate • Relationship between the deputy and the client • Clients support network • Terms of the Court order

24. Supervision of Deputies • Type 1 – one visit by Court of Protection Visitor, regular reports, contact by O.P.G. with interested third parties • Type 2 – Personally report to the O.P.G. annually • Type 3 – No regular intervention ( allocated to cases where assets are below £16,000 • Welfare and Investment specialists will recommend the type of supervision and what that should entail

25. Fees • Deputy set up - £125 • Type 1 annual supervision - £800 • Type 2 annual supervision - £175 • Type 3 annual supervision - £nil Fees are payable from the funds of the person for whom the deputy was appointed. In addition the deputy can claim reasonable expenses from the persons estate and be paid if the Court so directs

26. So what do I do? • Always discuss with your manager any request to contact the Court of Protection or Office of the Public Guardian • Always refer the request to the Legal Services Department of your organisation • Ensure you have tried all other reasonable measures before going to Court (if the C.O.P. thinks your application was unnecessary then will call you to Court to explain yourself) • Ensure your case notes meet the highest standards as they will be used in the Court case • Take copies of the Court authorisation given to deputies