The Court of Protection Rules are changing for the first time since they were implemented alongside the Mental Capacity Act in 2007.
Some changes regarding appeals (to different tiers of Court of Protection judge) come in to force on April 6th and the other main changes have effect from 1st July 2015.
One of the key changes will be that the court will consider more carefully in each case whether the person who lacks capacity can/should participate in the proceedings, and whether they need a legal representative to help them do so. This appears to be a more straightforward process than appointing a litigation friend.
The new rules also remove the requirement of asking the court for permission to apply in certain situations.
Much of the commentary on these changes has been in relation to welfare applications but the need to increase the participation of the person who is most affected by the court proceedings will affect property and affairs cases too, and these cases account for over 90% of the Court of Protection’s workload.
Even in seemingly straightforward deputyship application cases, it is likely to be appropriate for the Court to consider whether the person who has been assessed as lacking capacity has been adequately supported to participate in the process as much as possible. Deputyship is a more restrictive and expensive regime than making a Lasting Power of Attorney and the Court of Protection must make the least restrictive order in each case and ensure the person who lacks capacity is consulted and involved.
The enhanced participation of the person who lacks capacity accords with the spirit of the International Convention of the Rights of Persons with Disabilities and marks another step forwards in mental capacity law towards greater autonomy for the individual. This clearly has to be balanced with the need to ensure an appropriate level of protection against the risk of financial abuse.
We regularly act for clients who lack capacity in Court of Protection applications and would be happy to discuss any queries you may have about these changes and how they might affect you or a family member.