Remember that 1 December sees the coming into force of the new look CoP Rules and accompanying Practice Directions. All of these can be found most easily on the Court of Protection Handbook website here, together with a handy destination table to show where the old Rules have gone. The changes and their background are discussed in the November 39 Essex Chambers Mental Capacity Report here.
The revised second edition of the Court of Protection Handbook is now out, including an update on key developments over the past year, and a copy of the new Court of Protection Rules 2017. Those kindly people at Legal Action Group have also prepared a supplement with the update and the Rules. This will be sent out automatically (for free) to people who bought the second edition directly from LAG but can be requested (by email to email@example.com) for free by those who bought from other outlets. It can also be found as a PDF here, and will shortly be available (again for free) as an eBook from Amazon.
Accompanying the new Rules to come into effect on 1 December 2017 (assuming Parliamentary approval), a new suite of Practice Directions will also be brought into force. A table is set out below, and the PDs can all be found here.
For the most part, the substance of the Practice Directions is the same as that contained in the existing ones, although recast to reflect the renumbering in the Rules. Important points to note are:
1. Practice Direction 3B, consolidating into the practice of the Court the case management pilot approach to case pathways
2. Practice Direction 4C, consolidating the transparency pilot into the practice of the Court
3. Practice Direction 17C, consolidating the s.17 pilot approach
4. Practice Direction 24C, providing for transition arrangements in the following terms
Applications received after commencement
2. If an application under the Previous Rules or the pilot Practice Directions is received at the court on or after commencement [i.e. 1 December], it will be returned.
3. However, an application made under the Rules using the version of the relevant form which was current immediately before commencement will be accepted until close of business on 12 January 2018, or such later date as the Senior Judge may direct.
Applications received before commencement
4. The general presumption will be that any step in proceedings which were started (in accordance with rule 62 of the Previous Rules) before commencement which is to be taken on or after commencement is to be taken under the Rules.
(Rule 62 of the Previous Rules provides that proceedings are started when the court issues an application form at the request of the applicant.)
5. However, the general presumption is subject to any directions given by the court, which may at any time direct how the Rules are to apply to the proceedings.
6. Any step already taken in the proceedings before commencement in accordance with the Previous Rules or the pilot Practice Directions will remain valid on or after commencement.
Orders made before commencement
7. Where a court order has been made before commencement under the Previous Rules or the pilot Practice Directions, the order must still be complied with on or after commencement.
Finally, it should be noted that Practice Direction 9E, concerning serious medical treatment, is not carried over into these new provisions, so that it will fall away on 1 December 2017. At time of writing no replacement has been proposed.
|Practice Direction 1A – Participation of P|
|Practice Direction 2A – Levels of judiciary|
|Practice Direction 2B – Authorised court officers|
|Practice Direction 2C – Application of the Civil Procedure Rules 1998 and the Family Procedure Rules 2010|
|Practice Direction 3A – Court’s jurisdiction to be exercised by certain judges|
|Practice Direction 3B – Case pathways|
|Practice Direction 4A – Hearings (including reporting restrictions)|
|Practice Direction 4B – Court bundles|
|Practice Direction 4C – Transparency|
|Practice Direction 5A – Court documents|
|Practice Direction 5B – Statements of truth|
|Practice Direction 6A – Service of documents|
|Practice Direction 6B – Service out of the jurisdiction|
|Practice Direction 7A – Notifying P|
|Practice Direction 8A – Permission|
|Practice Direction 9A – The application form|
|Practice Direction 9B – Notification of other persons that an application form has been issued|
|Practice Direction 9C – Responding to an application|
|Practice Direction 9D – Applications by currently appointed deputies, attorneys and donees in relation to P’s property and affairs|
|Practice Direction 9E – Applications relating to statutory wills, codicils, settlements and other dealings with P’s property|
|Practice Direction 9F – Applications to appoint or discharge a trustee|
|Practice Direction 9G – Applications relating to the registration of enduring powers of attorney|
|Practice Direction 10A – Applications within proceedings|
|Practice Direction 10B – Urgent and interim applications|
|Practice Direction 11A – Deprivation of liberty applications|
|Practice Direction 12A – Human Rights Act 1998|
|Practice Direction 13A – Procedure for disputing the court’s jurisdiction|
|Practice Direction 14A – Written evidence|
|Practice Direction 14B – Depositions|
|Practice Direction 14C – Fees for examiners of the court|
|Practice Direction 14D – Witness summons|
|Practice Direction 14E – Section 49 reports|
|Practice Direction 15A – Expert evidence|
|Practice Direction 17A – Litigation friend|
|Practice Direction 17B – Rule 1.2 representatives|
|Practice Direction 18A – Change of solicitor|
|Practice Direction 19A – Costs|
|Practice Direction 19B – Fixed costs in the Court of Protection|
|Practice Direction 20A – Appeals|
|Practice Direction 20B – Allocation of appeals|
|Practice Direction 21A – Contempt of court|
|Practice Direction 22A – Civil restraint orders|
|Practice Direction 23A – International protection of adults|
|Practice Direction 24A – Request for directions where notice of objection prevents Public Guardian from registering enduring power of attorney|
|Practice Direction 24B – Where P ceases to lack capacity or dies|
|Practice Direction 24C – Transitional provisions|
The Court of Protection Rules 2017 have been laid before Parliament, to come into force on 1 December. These recast all of the Rules into the same format as the Civil Procedure and Family Procedure Rules. The new-look Court of Protection Rules will also incorporate those rules relating to case management which have, since September 2016, been implemented by way of the Case Management Pilot. Accompanying – renumbered – Practice Directions (not yet published) will also cement into the practice of the Court the Transparency Pilot and the Section 49 Report Pilot.
LAG will shortly be publishing a revised second edition of the CoP Handbook and supplement with the new Rules and an introductory text outlining key changes since the publication of the second edition.
The next Court of Protection Court User Meeting (open to the public) is to be held on Wednesday 11 October at 14:00 in Court 23, 5th Floor, First Avenue House in London.
Please speak to a member of staff at the front desk if you would like to attend or email firstname.lastname@example.org ensuring you put ‘Court User Group’ in the subject field.
As the law relating to welfare issues increasingly diverges in Wales (see, for instance, the different approaches to safeguarding taken in the Care Act 2014 in England vs the Social Services and Well-Being Wales Act 2014), the lack of a dedicated textbook relating to Welsh law has become an increasingly burning issue. Thankfully, Luke Clements (of Community Care and the Law fame), together with Ann Davey, has now very substantially plugged this hole with the website Rhydian: Social Welfare Law in Wales. This will act as both a news platform and an online journal, and is a hugely welcome new resource.
In a step which will gladden the heart of all those who have had to include “This order takes effect notwithstanding the fact that it is not yet sealed” in their orders from the Court of Protection, the Court of Protection will, from 21 July, be endorsing all non-financial orders with an electronic seal. For more details, see the letter from HMCTS here.