Court of Protection

What is the Court of Protection?

The Court of Protection is specialist court dealing with those who lack the mental capacity to administer their own financial affairs.

The court can only find that someone lacks mental capacity if they are satisfied, after considering medical evidence, that the person is incapable, by reason of a mental disorder, of managing and administering their property and affairs. Such a person is known as a "patient".

Under the Mental Health Act 1983 the court may do anything with respect to the property or affairs of a patient that would ensure:

(a) they are maintained for the benefit of the patient,

(b) they are maintained for the benefit of members of the patient's family,

(c) provision is made for other persons or purposes for whom or which the patient might be expected to provide if he or she were not mentally disordered.

Once satisfied that the person is a patient, the court may make any order or direction necessary, which includes the power to appoint a "receiver" to ensure that the person's finances are administered safely and to their benefit.

 

Applications to the Court of Protection

Appointment of a receiver

A receiver is a person appointed by the court to manage the financial affairs of a patient. Once appointed, the receiver is authorised to make decisions on a patient's behalf concerning the administration of their financial affairs. This appointment lasts until it is no longer required by the patient.

The things that a receiver can make decisions about are determined by the court and when someone is appointed as a receiver they get a court order stating what they can and can not do.

You can apply to be a receiver if you are over 18 years old. Receivers are usually close relatives or friends of the patient, but may be a professional person who is paid to act as a receiver, for example an accountant or a lawyer.

To apply to become a receiver you will need to complete the forms "application for first receiver" and "evidence of family and property". You will also need to provide to the court medical evidence regarding the patient's mental capacity. To do this you need to get the medical practitioner who deals with the patient to complete the form "medical certificate". These forms are available in hard copy from the court staff.

There will be a fee payable when you make your application and the court staff can advise you of how much this is and how you can make payment. Please bring copies of your completed application forms to the court; we cannot accept service by email.

Other orders

If a full order for receivership is not needed but there is a need to make a single important decision relating to a patient's affairs then you can apply to the Court of Protection for a one-off order. You may also apply in this way if you have been appointed as a receiver and the type of decision you need to make in relation to the patient's affairs is not covered by the order you received.

An application of this type may be made on the form "application for a general order". If you are applying for an order relating to a person who the court has not already appointed a receiver for, then the court will need to be satisfied of the fact that the person should be classed as a patient. You will therefore need to get the medical practitioner who deals with the patient to complete the form "medical certificate". These forms are also available in hard copy from the court staff.

You will have to pay a fee to apply and the court staff can advise you of how much this is and how you can make payment. Please bring copies of your completed application forms to the court; we cannot accept service by email.

 

I have completed my application forms and submitted them, what happens next?

The court will fix a hearing for your application and will notify you in writing of the date and time you need to attend. They will also return to you a sealed copy of your application and a certificate of service. A letter will accompany these documents informing you of the next steps.

Once you have received these documents from the court you must serve notice of your application upon certain people. The people that you need to serve depend upon the type of application that you have made. The court will tell you who you need to serve when they notify you of the hearing date.

It is important that you act quickly to ensure that notice is served in time for the hearing. How soon you need to serve notice also depends upon the type of application you are making.

Application to appoint a receiver

You will need to serve notice of the application and when the hearing is to take place at least 10 clear days before the application is to be heard

Application for a general order

You will need to serve notice of the application and when the hearing is to take place at least 2 clear days before the application is to be heard.

Once you have served your notices you will need to complete the "certificate of service" that came with your notice of hearing. This is to prove to the court that you have informed the necessary people of your application and when it is to be dealt with. Please ensure you either bring this with you to the hearing or return it to the court in advance of the hearing date.

 

What happens at the hearing?

At the hearing the court will consider whether the subject of the application should be categorised as a "patient" and whether it is appropriate to make the order your have requested. You may be asked some questions about the patient if the court needs to know more.

 

I have been appointed as a receiver; what happens next?

Being appointed as a receiver is an important and serious responsibility. The order that you receive after you have been appointed will tell you exactly what you can do in relation to the patient's property and affairs.

On appointment as a receiver there is a further fee to be paid. You may not start acting on the patient's behalf until you are in receipt of the order and have paid the appointment fee. The amount payable will be confirmed by the court staff once your application is successful.

Each year you will have to submit accounts to the court for the Judge to check. The form of accounts can be found here or a hard copy may be provided by the court office. Upon the filing of accounts there is a fee to be paid and the court staff can inform you of the amount that is due.

Each year you will also be sent a certificate by the court telling you what fee is due for the administration of the case and by when it must be paid.

Any expenses that you incur as part of carrying out your duties as a receiver (including the fees that you pay) may be claimed as an expense on the patient's property and affairs. You may be asked to give a detailed report of what you have spent and why and you will have to pay the money back if the court finds that your expenses are unreasonable. You cannot claim for the time you spend carrying out your duties unless you are a professional receiver.

 

I am responsible for the administration of the patient's property and affairs, what does that mean?

Practically this means that you have day to day responsibility to ensure that the patient is adequately provided for and that their property and affairs are managed in such a way as to ensure that they are maintained for the benefit of the patient and / or relatives.

When making decisions regarding the property of the patient you must:

· Ensure they are in the patient's best interests

· Do everything you can to help the patient to understand the decision

· Keep your own property and money separate from the patient's

· Keep records of the finances you manage on their behalf (including receipts and bills paid etc as appropriate).

If you find that you need to make a decision or financial transaction on behalf of the patient that the order does not give you permission to do, you may come back to the court and make a further application. (see "other orders" for more details on how to do this.)

 

The person I have been acting as receiver for has died, what do I need to do?

If the person you are a receiver for dies you must inform the court and provide evidence of their death e.g. a death certificate.