Glossary of Court of Protection terms

A Glossary of Court of Protection terms

Applicant(s)

Person or persons applying to the Court of Protection. This may be the person applying to be Deputy or an existing Attorney or someone else.

Attorney(s)

Appointed under an enduring power of attorney or a lasting power of attorney to make decisions on behalf of the person who set up the power, including when that person has lost Mental Capacity. Attorneys can be appointed for financial decisions and for health decisions.

Best Interests

The aim of this is to consider matters from the person without capacity’s point of view (i.e. what they would have wanted - bearing in mind that we cannot always have what we want) and other objective consideration (i.e. expert points of view), usually referred to as a balance sheet of factors. Section 4 of the MCA 2005 sets out a simple checklist of factors which must be applied in determining Best Interests. There is not a simple answer for Best Interest, as every decision is unique to the person and circumstances involved.

Capacity Assessment

This is the name given to the report which the Court requires in order for it to make decisions on any application submitted to it. The Court needs to establish that the person cannot make that particular decision for themselves before it can have jurisdiction to decide. The form required is a COP3. This is usually completed by a Social Worker or Medical Practitioner.

COP1

The application form required to start proceedings in the Court of Protection, except for in some limited cases such as deprivation of liberty applications or discharge applications. The form must usually be accompanied by an application fee.

Court of Protection

A specialist Court in England & Wales that can make decisions on behalf of people who lack Mental Capacity to make decisions for themselves. The Court is based in London and has regional hubs.

Court Order

An official declaration by a judge (or someone authorised by the Court) that is legally binding. There are different types of Court Orders but they can usually be split into 2 main categories – final and interim. Final orders are made at the end of the Court process and can include the appointment of a Deputy, authorisation of a PI Trust. Interim orders are made by the Judge during the Court process and can include limited authority, requests for further evidence, hearing dates and so on. Interim orders can sometimes also be called Directions Orders.

Deprivation of Liberty Safeguard (DOLS)

This is the legal terminology for an application which is considered by the Court of Protection to consider whether it is justified to deprive a person of their liberty. Most commonly used in cases of residential care home placements where residents are not permitted to come and go as they please, DOLS are quite common. These can however, be disputed or objected to on behalf of P and are subject to further review and lengthy proceedings at the Court.

Deputy/Deputies

A person (or persons) appointed by the Court of Protection to make decisions for someone who lacks Mental Capacity where there is no valid power of attorney in place. There are two types of Deputy – a Property & Financial Affairs Deputy and a Personal Welfare Deputy. The Court rarely appoint Personal Welfare Deputies.

Deputy Order/ Deputyship

There are two types of Deputy Order: a Deputy Order for Property and Financial Affairs and a Health and Welfare Deputyship. Deputy Orders grant the authority to a trust corporation, specific individual (or individuals) to make decisions on behalf of P (with reference to the specific permissions set out in the Deputy Order).

Deputy Report / Annual Report

When a person is appointed as a Deputy under a Deputy Order, they are required to account each year to the OPG for all income, outgoings and assets on behalf of P. This is submitted to the OPG in an annual report.

Gifting Application

This is a specific application made in the Court of Protection. It is required to be made by Attorneys and Deputies in cases where a gift is being proposed from P’s assets which is outside the usual rules of gifting. The application will consider the reasons for the gift, the reasonableness and proportionality to P’s estate and what is in P’s best interests.

Guardian(s)

Appointed under a guardianship order by the Court of Protection to deal with a missing person’s property and financial affairs.

MCA 2005 (Mental Capacity Act 2005)

Legislation (laws) that provides a comprehensive framework to protect and empower people who may lack Mental Capacity to make their own decisions. The MCA 2005 has recently been amended in relation to procedures in accordance with which a person may be deprived of liberty where the person lacks capacity to consent by the Mental Capacity (Amendment) Act 2019.

Mental Capacity

Whether someone can make their own decision. The legal definition is set out in the MCA 2005 (Mental Capacity Act 2005). Under the MCA 2005, the starting assumption is always that a person has mental capacity. It is important to understand that capacity is both time and decision specific.

Office of the Public Guardian

Commonly referred to as the OPF, this government organisation works closely with the Court of Protection and is responsible for registering and keeping a record of Lasting Powers of Attorney. It also supervises and supports Deputies and Guardians appointed by the Courts and investigates reports of misconduct or abuse by registered Attorneys, Deputies or Guardians.

Official Solicitor

This is an independent Solicitor appointed in some, usually complex, Court of Protection cases to represent the individual who lacks capacity. The Official Solicitor has their own costs and acts on behalf of the person the application is about, to negotiate the best option for that person and to ensure the outcome which is in that person’s best interests.

‘P’

Who is P? - “P” is the letter by which the Court refers to the person who is subject to the Court’s decision: the Patient or Protected Party.

PI Trust (Personal Injury Trust)

Also known as a Compensation Protection Settlement, this type of Trust is specifically set up to hold compensation received from a Personal Injury claim. The Trust will be in writing and is legally binding. The benefit of creating a Personal Injury Trust is to separate your compensation from your other assets so that this money is protected, used for the purpose for which it was intended and to ensure this is appropriately disregarded in any future calculations for means-tested benefits and care fees. If the person who suffered the personal injury lacks Mental Capacity to manage their own finances then the PI Trust may require the authorisation of the Court of Protection. The Court may suggest, in such circumstances that a Property and Financial Affairs Deputy is appointed instead.

Statutory Will

This is another application which is made to the Court of Protection. The application is for a Will to be made on behalf of a person who otherwise does not have capacity to make a Will under the usual rules. These applications often involve the Official Solicitor and require a great deal of evidence to establish that any proposed Will is in P’s best interests. Once approved, the newly drafted Will can be signed by P’s approved representative and it will be treated as if P him/herself had signed.

Trust

A Trust is when a person passes assets to others (known as Trustees) to hold and to manage those assets for the benefit of a specified person or group of people. This can have the benefit of ring-fencing assets in law and offers some degree of protection, depending on the circumstances.

Trustee Application

This is a specific application required to be made to the Court of Protection where there is co-ownership of land which needs to be sold. This application may be required to appoint additional “Trustees” to sign paperwork to sell land on behalf of P where there is a co-owner. Whether this is required depends upon how the land or property is owned at the Land Registry and who is legally entitled to sell it.