CoP Application and appeal fees reduced (a bit)

The snappily named Court of Protection, Civil Proceedings and Magistrates’ Courts Fees (Amendment) Order 2018, coming into force on 25 July, will reduce the fees for applications from £400 to £385, and for appeals from £400 to £320.

The reduction to these fees follows, according to Parliamentary Under Secretary of State for Justice Lucy Frazer QC MP “a thorough and detailed review undertaken by officials in the Ministry of Justice into the cost of these proceedings. Our review has identified a number of cases where the fees charged were above full cost recovery levels.”   It is not clear at this stage whether those who have been charged the higher sums in the CoP will also benefit from the refund scheme that is being applied in relation to excess fees identified in other areas.

 

 

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Accredited Legal Representatives Scheme Launched

We are very pleased to confirm that on 2 April 2018 HMCTS introduced the process of appointing accredited legal representatives (ALRs) of the court’s own motion, in appropriate cases.  This means that the “menu” of options for representing P, as set out in COPR r1.2 is now complete.

We hope that the court will take advantage of the cadre of ALRs who have gone through what appears to be the testing process of securing appointment to the Law Society’s Mental Capacity Accreditation Scheme.

We’re aware that some practitioners have expressed concern that, in circumstances where P has been referred by his or her RPR to a solicitor who has secured legal aid, the court may then appoint a different solicitor as ALR.  There are understandable anxieties about lack of continuity for P and duplication of work.

We suggest that there is a pragmatic solution.  A solicitor who has been working with P, perhaps after a referral by an RPR, and who then issues a section 21A challenge could file a statement alongside Form DLA which sets out the solicitor’s involvement with P so that the court is aware of the issue of continuity when deciding which of the rule 1.2 options to select.  An accredited solicitor who wishes to be appointed as such could also file a COP9 requesting appointment.

We are very interested to hear about the experience of practitioners as the new scheme gathers pace.

Foreign powers of attorney – an unfortunate judicial wrong turn

Re JMK [2018] EWCOP 5, HHJ Hilder, faced with two litigants in person, has taken an unfortunate wrong turn as regards the basis upon which ‘foreign’ (i.e. non English & Welsh) powers have effect in England and Wales.

Two litigants in persons (the daughter and son-in-law of the donor) sought recognition and enforcement of a Canadian “Continuing Power of Attorney for Property” as a “protective measure” pursuant to paragraph 19 of Schedule 3 to the MCA 2005.  It is not entirely clear from the judgment why they did so, although there is mention of a family legal battle, presumably in Canada.   It is likely that there must have been some property in England and Wales that the holders wanted to administer and it can perhaps be assumed that they were having difficulty doing so without a court order.

Although the judgment does not say where power was made, it notes that the power was headed “[m]ade in accordance with the Substitute Decisions Act 1992.”  This suggests that the power was made in Ontario where, although it appears that this was not brought to the judge’s attention, a Continuing Power of Attorney for Property does not need to be registered before it takes effect, either with a court or with an administrative body the equivalent of the Office of the Public Guardian in either England & Wales or Scotland.  There was no evidence of the donor’s capacity at the date the power was executed although there was evidence from the care home where she lived in Canada that she lacked capacity thereafter.

The two parties before SJ Hilder were unrepresented, and she noted that she did not have the benefit of legal submissions.  The only authority that she found on Schedule 3 was the decision of Hedley J in Re MN (Recognition & Enforcement of Foreign Protective Measures) [2010] EWHC 1926, concerning a protective measure in the form of an order made by a California court.

SJ Hilder, upholding (on reconsideration) the refusal of the District Judge to recognise and enforce the power of attorney as a protective measure, noted that:

17. […] reference to ‘protective measures’ in Schedule 3 is intended, and generally understood, to refer to arrangements that have been made or approved by a foreign court. It may not be spelled out explicitly but the language of paragraph 19(3) in particular confirms that intention and understanding: each of the circumstances in which the mandatory requirement can be disapplied clearly envisages court proceedings. I have not found any authority which casts doubt on that understanding. JMK’s Power of Attorney has been through no court process at all. It is not even subject to a system of registration. It therefore does not fall within the general understanding of the term ‘protective measure’ for the purposes of recognition by this Court pursuant to Schedule 3.

18. More widely, it seems to me that PH’s understanding of the Power of Attorney at the time when it was granted (as set out in paragraph 16(a) above [“at the time of issuance, the POA was not a protective measure other than [JMK] was not used to managing household finances… we offered to help but, in order to do this properly, we needed her authority which was deemed to be a Power of Attorney”] captures a more accurate understanding of the nature of the instrument executed by JMK. If validly executed, a Power of Attorney is better characterised as an exercise of autonomy (even if it provides for a time when the donor is no longer capable of autonomous decision-making) than as a “protective measure.”

SJ Hilder concluded by noting that it remained open to the applicants to apply to be appointed as property and affairs deputies in this jurisdiction.

Comment

It is very unfortunate that SJ Hilder did not have benefit of legal submissions on this important issue, because she did not have her attention drawn to the fact that she was being asked the wrong question by the applicants, and that she should have been analysing the position not by reference to whether or not the power of attorney was a protective measure for purposes of Part 4 of Schedule 3, but rather by reference to the provisions of Part 3.   As explained in more detail in a discussion paper I prepared some years ago here (paragraphs 31ff), the general rule is that powers of attorney which are valid according to the law of the habitual residence of the donor are directly effective in England & Wales.

It is irrelevant, therefore, whether or not ‘foreign’ powers are also capable of being protective measures for purposes of Part 4 of Schedule 3, which was the focus of SJ Hilder’s analysis.  The question was whether the Ontario power was valid according to the terms of Ontario law (assuming that JMK had been habitually resident there at the point of granting the power.

 I should perhaps also note, however, that whilst it is undoubtedly correct that a foreign power that has not been registered with an administrative body or a court cannot be considered a protective measure, the position is now more nuanced than it was at the time I drafted the note set out above in 2014.    In a very unusual step that we reported upon in the October 2017 Mental Capacity Report, the Explanatory Report to the 2000 Hague Convention on the International Protection of Adults (which underpins Schedule 3 to the MCA 2005) was issued in a new and revised edition, available here.   In addition to the correction of a few typos, the new and revised edition includes in particular a modification to paragraph 146 made by the Rapporteur, Professor Paul Lagarde relating to the confirmation of powers of representation (powers of the attorney and the like).   The new paragraph reads thus:

The concept of the confirmation of powers must give every guarantee of  reliability and be seen in the light of legal systems which make provision for this confirmation and place it in the hands of a particular authority, judicial in Quebec, administrative elsewhere. The first version of this report, which was based on a reading of the Convention text, set forth that this confirmation is not a measure of protection within the meaning of the Convention. If this indeed were the case, there would be no need to mention it alongside the measures of protection in Article 38. However, some delegations have since asserted that this analysis is not one which, according to them, flows from the discussion, difficult as it was. […] According to this view, a confirmation could constitute a measure of protection within the meaning of Article 3 and it could only be given by the competent authority under the Convention. A consequence of this might be that, if the adult has, in accordance with Article 15, paragraph 2, submitted the conferred power to an applicable law other than that under which the authorities have jurisdiction under the Convention, the representative risks being deprived of the possibility of having his or her powers confirmed, for instance, by the competent authority of the State whose law is applicable to the power of representation.

In other words, the Explanatory Note makes clear that the intention underpinning the Convention – and hence Schedule 3 – is that registered power (for instance a Scottish power registered with the Office of the Public Guardian) may well be capable of an application for recognition and enforcement.   That could never have benefited an attorney under an Ontario power, but the position may well be different in relation to many other types of powers.

Importantly, however, it is equally – if not more – unfortunate that SJ Hilder did not have drawn to her attention the provisions of (at the time Part 24, but now Part 23) of the Court of Protection Rules, which provide in Rule 23.6 for a standalone application to be made in any case where there is doubt as to the basis upon which the attorney under a foreign power is operating.  This is what the applicants in this case should have been seeking and the court considering, and it is the course of action I would strongly advise that any attorney under a ‘foreign’ power takes in future in the case of recalcitrant institutions in England and Wales.  I would hope, further, that the opportunity arises swiftly for either SJ Hilder or another judge of equivalent or greater seniority to clarify the position with the benefit of submissions based upon the matters set out above.

CoP Rules 2017 come into force tomorrow

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.

CoP Handbook 2017 Rules Changes supplement/revised second edition

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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 lag@lag.org.uk) 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.

 

Guest Post by Zena Soormally on the duties of ALRs

We’re very pleased to include this post by Simpson Millar’s Zena Soormally, which summarises the guidance from the Law Society on the role of ALRS.

“Having read the new Law Society Practice note on Accredited Legal Representatives (“ALRs”), I thought I’d summarise a little of what I now understand the role to entail and my thoughts for the views of those who are interested. Please note that you can only access the note if you are registered with the Law Society and, even when you do access it, it has the usual status of guidance from the Law Society, it is not binding:

  • If you act as ALR, P will be understood to be your client (notwithstanding that ALRs are appointed by the court so you won’t have your usual solicitor/client relationship)
  • If the court wishes to appoint you as an ALR (where you are accredited by the Law Society) the court needs your permission before you are so appointed – so there will be scope to work out your case load obligations at the time and funding issues (although there doesn’t appear to be any guidance about the ramifications, if any, if you refuse to take a case a number of times)
  • The ALR invitation can be made on courts own initiative or on application
  • The COP has to consider, as with all cases, at the start, whether an ALR should be appointed, or whether P should participate in some other way (Rule 3A) – generally that will be, in summary (1) ALR, (2) LF, (3) Rule 3A Rep, or some other direction
  • The Law Society Guidance suggests that the following cases are likely to require a litigation friend, not an ALR: where

o   expert evidence is needed – arguably quite a lot of cases will fall in to this category

o   the case is “complex” – although no definition or guidance is given to define what ‘complexity’ will look like

o   there are a wide range of issues to consider, and

o   the case involves 16-18 year olds who are a party

  • In other cases, a Rule 3A rep might fit the bill better.
  • In many cases, it’s possible that no representative of P at all will be needed, as is the case is non contentious – e.g. COP Property and Affairs cases
  • It is more likely that an ALR will be appointed if issues are relatively defined.
  • It may be that you will be appointed as ALR at first but then need a litigation friend as case becomes more complex or contentious. It will be up to the litigation friend whether they then instruct the ALR as solicitor going forward, although I can see benefits of that.
  • Once appointed as ALR, the usual processes follow as if you were a solicitor, as far as I can tell – e.g. see client, obtain and consider docs etc.
  • The COP’s list of ALRs will be updated monthly. It is up to the COP how it will allocate those cases and, as far as the guidance says, there is likely to be regional differences in approach, which will no doubt cause some issues for lawyers in practice while transition takes place to the new approach.
  • The guidance provides interesting guidance in relation to client care letters: P will be the ALR’s client but anyone acting as ALR will need to consider putting together an appropriate client care letter in line with the guidance and the SRA Code. If it is inappropriate to send a letter, ALRs will be expected to retain a copy on file with a note explaining why it wasn’t appropriate to send one.
  • ALR’s must adhere to SRA code of conduct, as would be expected.
  • ALR’s are not expected to send anyone else in their place to meet with P (which makes sense and must, in my view, be right, but which some senior solicitors may struggle with, if they routinely send out junior staff for client meetings, rather than attending in person).
  • ALRs will need to make sure,

o   as they already should , that they have regard to, and implement, Mr Justice Charles’ guidance on the Participation of P, and

o   even if you are unfamiliar with it now, that you have read the guidance re Rule 11 (7) (B) rules for MHT work, as there is overlap specifically mentioned in the guidance.

  • As with a litigation friend, the role of ALR is to put forward a case in P’s best interests, not always just what P wants, although you must always make P’s wishes and feelings clear. Whatever happens, if you are unsure what to do, the advice appears, sensibly, to be that you should make an application to the COP (on notice or not) under Rule 148A to seek guidance.
  • Solicitor ALR’s can conduct own advocacy in COP but you can also instruct Counsel if you wish – although, as always, they must have the right experience.
  • The duties to your ‘client’ section of the guidance, including the sections on confidentiality, disclosure and privilege, cause me some concern, given the practice of preparing notes of visits to P, where they lack capacity to conduct proceedings, and reporting everything said to the COP by way of witness statement: I am not sure, in practice, how the balance will be struck under the ALR role, where there is no client to seek instructions from on the issue of whether something should be withheld from the statement or not. In practice, it may result in further applications to the COP for guidance, until the case law has developed to provide that guidance.
  • Funding: this is still a pain as far as I can see but the updated information is helpful. Essentially, as I understand it, it works as if you are a litigation friend, save that you have to ask the LAA to exercise its discretion under Regulation 30 (5) to waive the need for a signature on the LAA forms. However, that doesn’t help the fact that you can only get legal aid if P is a party, wishes to be joined as a party and/or is contemplating proceedings. None of those will apply to a lot of the ALR cases, so, I imagine, that means that LAA funding will not be available unless P is, in practice, a party. That may, in effect, just mean that, until the funding issues are resolved, P will be routinely joined as a party, with an ALR. All the other usual LAA rules apply as do the usual rules with regards to private funding and/or seeking undertakings on costs from the relevant public body if legal aid isn’t available.
  • Non LAA practitioners can become ALRs but they cannot accept cases where P is, or may be, eligible for legal aid. The borderline eligibility cases and/or those where P isn’t eligible but will be in the near future (perhaps because of built up savings) will no doubt therefore, need to go to LAA practitioners only).
  • There will be some lag between being invited to act as ALR, and actually being able to accept, because of the work needed to establish LAA eligibility. You will not have funding to carry out that work, so we will be taking over the role, which the OS usually has to deal with, to investigate eligibility without funding being it place – that may, in some of these cases, require a number of letters and calls, which isn’t appealing, but isn’t always too onerous.
  • The guidance specifically reminds ALRs to be mindful of advising/taking forward any linked issues with regards to judicial review and/or damages claims BUT note that as ALR you have no magic status to take such a matter forward and, as in cases now, you would no doubt need to approach someone (perhaps the OS) to act as litigation friend in those other non COP cases if you see something that needs to be progressed. I imagine, if an ALR case became a case that required linked involvement from the OS as litigation friend, the OS would also see good reason to act as litigation friend in the ALR case.
  • Don’t forget to have regard to the case of Re RD when dealing with s21A cases, in the usual way.”

Court of Protection Rules 2017

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.