(1)There is to be a superior court of record known as the Court of Protection.
(2)The court is to have an official seal.
(3)The court may sit at any place in England and Wales, on any day and at any time.
(4)The court is to have a central office and registry at a place appointed by the Lord Chancellor [F1, after consulting the Lord Chief Justice]F1.
(5)The Lord Chancellor may [F2, after consulting the Lord Chief Justice,]F2 designate as additional registries of the court any district registry of the High Court and any county court office.
[F3(5A)The Lord Chief Justice may nominate any of the following to exercise his functions under this section—
(a)the President of the Court of Protection;
(b)a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005).]
F3(6)The office of the Supreme Court called the Court of Protection ceases to exist.
Textual Amendments
F1Words in s. 45(4) inserted (3.4.2006) by The Lord Chancellor (Transfer of Functions and Supplementary Provisions) (No.2) Order 2006 (S.I. 2006/1016), arts. 1, 2, Sch. 1 para. 32(2)
F2Words in s. 45(5) inserted (3.4.2006) by The Lord Chancellor (Transfer of Functions and Supplementary Provisions) (No.2) Order 2006 (S.I. 2006/1016), arts. 1, 2, Sch. 1 para. 32(3)
(1)Subject to Court of Protection Rules under section 51(2)(d), the jurisdiction of the court is exercisable by a judge nominated for that purpose by—
(a)the [F4Lord Chief Justice]F4, or
[F5(b)where nominated by the Lord Chief Justice to act on his behalf under this subsection—
(i)the President of the Court of Protection; or
(ii)a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005).]
F5(2)To be nominated, a judge must be—
(a)the President of the Family Division,
(b)the [F6Chancellor of the High Court],
(c)a puisne judge of the High Court,
(d)a circuit judge, F7...
(e)a district judge.
[F8(f)a District Judge (Magistrates' Courts),]
[F8(g)a judge of the First-tier Tribunal, or of the Upper Tribunal, by virtue of appointment under paragraph 1(1) of Schedule 2 or 3 to the Tribunals, Courts and Enforcement Act 2007,]
[F8(h)a transferred-in judge of the First-tier Tribunal or of the Upper Tribunal (see section 31(2) of that Act),]
[F8(i)a deputy judge of the Upper Tribunal (whether under paragraph 7 of Schedule 3 to, or section 31(2) of, that Act),]
[F8(j)the Chamber President, or Deputy Chamber President, of a chamber of the First-tier Tribunal or of a chamber of the Upper Tribunal,]
[F8(k)the Judge Advocate General,]
[F8(l)a Recorder,]
[F8(m) the holder of an office listed in the first column of the table in section 89(3C) of the Senior Courts Act 1981 (senior High Court Masters etc ), ]
[F8(n) a holder of an office listed in column 1 of Part 2 of Schedule 2 to that Act (High Court Masters etc ), ]
[F8(o)a deputy district judge appointed under section 102 of that Act or under section 8 of the County Courts Act 1984,]
[F8(p)a member of a panel of Employment Judges established for England and Wales or for Scotland,]
[F8(q)a person appointed under section 30(1)(a) or (b) of the Courts-Martial (Appeals) Act 1951 (assistants to the Judge Advocate General),]
[F8(r)a deputy judge of the High Court,]
[F8(s)the Senior President of Tribunals,]
[F8(t)an ordinary judge of the Court of Appeal (including the vice-president, if any, of either division of that court),]
[F8(u)the President of the Queen's Bench Division,]
[F8(v)the Master of the Rolls, or]
[F8(w)the Lord Chief Justice.]
(3)The [F9Lord Chief Justice, after consulting the Lord Chancellor,]F9 must—
(a)appoint one of the judges nominated by virtue of subsection (2)(a) to (c) to be President of the Court of Protection, and
(b)appoint another of those judges to be Vice-President of the Court of Protection.
(4)The [F10Lord Chief Justice, after consulting the Lord Chancellor,]F10 must appoint one of the judges nominated by virtue of subsection (2)(d) [F11to (q)] to be Senior Judge of the Court of Protection, having such administrative functions in relation to the court as the Lord Chancellor [F12, after consulting the Lord Chief Justice,]F12 may direct.
Textual Amendments
F4Words in s. 46(1)(a) substituted (3.4.2006) by The Lord Chancellor (Transfer of Functions and Supplementary Provisions) (No.2) Order 2006 (S.I. 2006/1016), arts. 1, 2, Sch. 1 para. 33(2)
F5S. 46(1)(b) substituted (3.4.2006) by The Lord Chancellor (Transfer of Functions and Supplementary Provisions) (No.2) Order 2006 (S.I. 2006/1016), arts. 1, 2, Sch. 1 para. 33(3)
F6Words in s. 46(2)(b) substituted (1.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 14 para. 5(3); S.I. 2013/2200, art. 3(g)
F7Word in s. 46(2)(d) omitted (1.10.2013) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 14 para. 5(2); S.I. 2013/2200, art. 3(g)
F8S. 46(2)(f)-(w) inserted (1.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 14 para. 5(2); S.I. 2013/2200, art. 3(g)
F9Words in s. 46(3) substituted (3.4.2006) by The Lord Chancellor (Transfer of Functions and Supplementary Provisions) (No.2) Order 2006 (S.I. 2006/1016), arts. 1, 2, Sch. 1 para. 33(4)
F10Words in s. 46(4) substituted (3.4.2006) by The Lord Chancellor (Transfer of Functions and Supplementary Provisions) (No.2) Order 2006 (S.I. 2006/1016), arts. 1, 2, Sch. 1 para. 33(5)(a)
F11Words in s. 46(4) substituted (1.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 14 para. 5(4); S.I. 2013/2200, art. 3(g)
F12Words in s. 46(4) inserted (3.4.2006) by The Lord Chancellor (Transfer of Functions and Supplementary Provisions) (No.2) Order 2006 (S.I. 2006/1016), arts. 1, 2, Sch. 1 para. 33(5)(b)
(1)The court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court.
(2)Section 204 of the Law of Property Act 1925 (c. 20) (orders of High Court conclusive in favour of purchasers) applies in relation to orders and directions of the court as it applies to orders of the High Court.
(3)Office copies of orders made, directions given or other instruments issued by the court and sealed with its official seal are admissible in all legal proceedings as evidence of the originals without any further proof.
The court may, pending the determination of an application to it in relation to a person (“P”), make an order or give directions in respect of any matter if—
(a)there is reason to believe that P lacks capacity in relation to the matter,
(b)the matter is one to which its powers under this Act extend, and
(c)it is in P's best interests to make the order, or give the directions, without delay.
(1)This section applies where, in proceedings brought in respect of a person (“P”) under Part 1, the court is considering a question relating to P.
(2)The court may require a report to be made to it by the Public Guardian or by a Court of Protection Visitor.
(3)The court may require a local authority, or an NHS body, to arrange for a report to be made—
(a)by one of its officers or employees, or
(b)by such other person (other than the Public Guardian or a Court of Protection Visitor) as the authority, or the NHS body, considers appropriate.
(4)The report must deal with such matters relating to P as the court may direct.
(5)Court of Protection Rules may specify matters which, unless the court directs otherwise, must also be dealt with in the report.
(6)The report may be made in writing or orally, as the court may direct.
(7)In complying with a requirement, the Public Guardian or a Court of Protection Visitor may, at all reasonable times, examine and take copies of—
(a)any health record,
(b)any record of, or held by, a local authority and compiled in connection with a social services function, and
(c)any record held by a person registered under Part 2 of the Care Standards Act 2000 (c. 14) [F13or Chapter 2 of Part 1 of the Health and Social Care Act 2008]F13,
so far as the record relates to P.
(8)If the Public Guardian or a Court of Protection Visitor is making a visit in the course of complying with a requirement, he may interview P in private.
(9)If a Court of Protection Visitor who is a Special Visitor is making a visit in the course of complying with a requirement, he may if the court so directs carry out in private a medical, psychiatric or psychological examination of P's capacity and condition.
(10)“NHS body” has the meaning given in section 148 of the Health and Social Care (Community Health and Standards) Act 2003 (c. 43).
(11)“Requirement” means a requirement imposed under subsection (2) or (3).
Textual Amendments
F13Words in s. 49(7)(c) inserted (1.10.2010) by The Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010 (S.I. 2010/813), art. 17(4)
(1)No permission is required for an application to the court for the exercise of any of its powers under this Act—
(a)by a person who lacks, or is alleged to lack, capacity,
(b)if such a person has not reached 18, by anyone with parental responsibility for him,
(c)by the donor or a donee of a lasting power of attorney to which the application relates,
(d)by a deputy appointed by the court for a person to whom the application relates, or
(e)by a person named in an existing order of the court, if the application relates to the order.
[F14(1A)Nor is permission required for an application to the court under section 21A by the relevant person's representative.]
F14(2)But, subject to Court of Protection Rules and to paragraph 20(2) of Schedule 3 (declarations relating to private international law), permission is required for any other application to the court.
(3)In deciding whether to grant permission the court must, in particular, have regard to—
(a)the applicant's connection with the person to whom the application relates,
(b)the reasons for the application,
(c)the benefit to the person to whom the application relates of a proposed order or directions, and
(d)whether the benefit can be achieved in any other way.
(4)“Parental responsibility” has the same meaning as in the Children Act 1989 (c. 41).
Textual Amendments
F14S. 50(1A) inserted (1.4.2009) by Mental Health Act 2007 (c. 12), ss. 50, 56, Sch. 9 para. 9; S.I. 2009/139, art. 2(e) (with art. 3)
[F15(1)Rules of court with respect to the practice and procedure of the court (to be called “Court of Protection Rules”) may be made in accordance with Part 1 of Schedule 1 to the Constitutional Reform Act 2005.]
F15(2)Court of Protection Rules may, in particular, make provision—
(a)as to the manner and form in which proceedings are to be commenced;
(b)as to the persons entitled to be notified of, and be made parties to, the proceedings;
(c)for the allocation, in such circumstances as may be specified, of any specified description of proceedings to a specified judge or to specified descriptions of judges;
(d)for the exercise of the jurisdiction of the court, in such circumstances as may be specified, by its officers or other staff;
(e)for enabling the court to appoint a suitable person (who may, with his consent, be the Official Solicitor) to act in the name of, or on behalf of, or to represent the person to whom the proceedings relate;
(f)for enabling an application to the court to be disposed of without a hearing;
(g)for enabling the court to proceed with, or with any part of, a hearing in the absence of the person to whom the proceedings relate;
(h)for enabling or requiring the proceedings or any part of them to be conducted in private and for enabling the court to determine who is to be admitted when the court sits in private and to exclude specified persons when it sits in public;
(i)as to what may be received as evidence (whether or not admissible apart from the rules) and the manner in which it is to be presented;
(j)for the enforcement of orders made and directions given in the proceedings.
(3)Court of Protection Rules may, instead of providing for any matter, refer to provision made or to be made about that matter by directions.
(4)Court of Protection Rules may make different provision for different areas.
Textual Amendments
(1)Directions as to the practice and procedure of the court may be given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005.
(2)Practice directions given otherwise than under subsection (1) may not be given without the approval of—
(a)the Lord Chancellor, and
(b)the Lord Chief Justice.
(3)The Lord Chief Justice may nominate any of the following to exercise his functions under this section—
(a)the President of the Court of Protection;
(b)a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005).F16]
Textual Amendments
(1)Subject to the provisions of this section, an appeal lies to the Court of Appeal from any decision of the court.
[F17(2)Court of Protection Rules may provide that, where a decision of the court is made by a specified description of person, an appeal from the decision lies to a specified description of judge of the court and not to the Court of Appeal.]
F18(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4)Court of Protection Rules may make provision—
(a)that, in such cases as may be specified, an appeal from a decision of the court may not be made without permission;
(b)as to the person or persons entitled to grant permission to appeal;
(c)as to any requirements to be satisfied before permission is granted;
(d)that where a F19... judge of the court makes a decision on an appeal, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that—
(i)the appeal would raise an important point of principle or practice, or
(ii)there is some other compelling reason for the Court of Appeal to hear it;
(e)as to any considerations to be taken into account in relation to granting or refusing permission to appeal.
Textual Amendments
F17S. 53(2) substituted (12.2.2015) by Criminal Justice and Courts Act 2015 (c. 2), ss. 62(2), 95(1)
F18S. 53(3) omitted (12.2.2015) by virtue of 2015 Criminal Justice and Courts Act 2015 (c. 2), ss. 62(3), 95(1)
F19Word in s. 53(4)(d) omitted (12.2.2015) by virtue of Criminal Justice and Courts Act 2015 (c. 2), ss. 62(4), 95(1)
(1)The Lord Chancellor may with the consent of the Treasury by order prescribe fees payable in respect of anything dealt with by the court.
(2)An order under this section may in particular contain provision as to—
(a)scales or rates of fees;
(b)exemptions from and reductions in fees;
(c)remission of fees in whole or in part.
(3)Before making an order under this section, the Lord Chancellor must consult—
(a)the President of the Court of Protection,
(b)the Vice-President of the Court of Protection, and
(c)the Senior Judge of the Court of Protection.
(4)The Lord Chancellor must take such steps as are reasonably practicable to bring information about fees to the attention of persons likely to have to pay them.
(5)Fees payable under this section are recoverable summarily as a civil debt.
(1)Subject to Court of Protection Rules, the costs of and incidental to all proceedings in the court are in its discretion.
(2)The rules may in particular make provision for regulating matters relating to the costs of those proceedings, including prescribing scales of costs to be paid to legal or other representatives.
(3)The court has full power to determine by whom and to what extent the costs are to be paid.
(4)The court may, in any proceedings—
(a)disallow, or
(b)order the legal or other representatives concerned to meet,
the whole of any wasted costs or such part of them as may be determined in accordance with the rules.
(5)“Legal or other representative”, in relation to a party to proceedings, means any person exercising a right of audience or right to conduct litigation on his behalf.
(6)“Wasted costs” means any costs incurred by a party—
(a)as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or
(b)which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay.
(1)Court of Protection Rules may make provision—
(a)as to the way in which, and funds from which, fees and costs are to be paid;
(b)for charging fees and costs upon the estate of the person to whom the proceedings relate;
(c)for the payment of fees and costs within a specified time of the death of the person to whom the proceedings relate or the conclusion of the proceedings.
(2)A charge on the estate of a person created by virtue of subsection (1)(b) does not cause any interest of the person in any property to fail or determine or to be prevented from recommencing.
(1)For the purposes of this Act, there is to be an officer, to be known as the Public Guardian.
(2)The Public Guardian is to be appointed by the Lord Chancellor.
(3)There is to be paid to the Public Guardian out of money provided by Parliament such salary as the Lord Chancellor may determine.
(4)The Lord Chancellor may, after consulting the Public Guardian—
(a)provide him with such officers and staff, or
(b)enter into such contracts with other persons for the provision (by them or their sub-contractors) of officers, staff or services,
as the Lord Chancellor thinks necessary for the proper discharge of the Public Guardian's functions.
(5)Any functions of the Public Guardian may, to the extent authorised by him, be performed by any of his officers.
(1)The Public Guardian has the following functions—
(a)establishing and maintaining a register of lasting powers of attorney,
(b)establishing and maintaining a register of orders appointing deputies,
(c)supervising deputies appointed by the court,
(d)directing a Court of Protection Visitor to visit—
(i)a donee of a lasting power of attorney,
(ii)a deputy appointed by the court, or
(iii)the person granting the power of attorney or for whom the deputy is appointed (“P”),
and to make a report to the Public Guardian on such matters as he may direct,
(e)receiving security which the court requires a person to give for the discharge of his functions,
(f)receiving reports from donees of lasting powers of attorney and deputies appointed by the court,
(g)reporting to the court on such matters relating to proceedings under this Act as the court requires,
(h)dealing with representations (including complaints) about the way in which a donee of a lasting power of attorney or a deputy appointed by the court is exercising his powers,
(i)publishing, in any manner the Public Guardian thinks appropriate, any information he thinks appropriate about the discharge of his functions.
(2)The functions conferred by subsection (1)(c) and (h) may be discharged in co-operation with any other person who has functions in relation to the care or treatment of P.
(3)The Lord Chancellor may by regulations make provision—
(a)conferring on the Public Guardian other functions in connection with this Act;
(b)in connection with the discharge by the Public Guardian of his functions.
(4)Regulations made under subsection (3)(b) may in particular make provision as to—
(a)the giving of security by deputies appointed by the court and the enforcement and discharge of security so given;
(b)the fees which may be charged by the Public Guardian;
(c)the way in which, and funds from which, such fees are to be paid;
(d)exemptions from and reductions in such fees;
(e)remission of such fees in whole or in part;
(f)the making of reports to the Public Guardian by deputies appointed by the court and others who are directed by the court to carry out any transaction for a person who lacks capacity.
(5)For the purpose of enabling him to carry out his functions, the Public Guardian may, at all reasonable times, examine and take copies of—
(a)any health record,
(b)any record of, or held by, a local authority and compiled in connection with a social services function, and
(c)any record held by a person registered under Part 2 of the Care Standards Act 2000 (c. 14) [F20or Chapter 2 of Part 1 of the Health and Social Care Act 2008]F20,
so far as the record relates to P.
(6)The Public Guardian may also for that purpose interview P in private.
Textual Amendments
F20Words in s. 58(5)(c) inserted (1.10.2010) by The Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010 (S.I. 2010/813), art. 17(5)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
(1)The Public Guardian must make an annual report to the Lord Chancellor about the discharge of his functions.
(2)The Lord Chancellor must, within one month of receiving the report, lay a copy of it before Parliament.
(1)A Court of Protection Visitor is a person who is appointed by the Lord Chancellor to—
(a)a panel of Special Visitors, or
(b)a panel of General Visitors.
(2)A person is not qualified to be a Special Visitor unless he—
(a)is a registered medical practitioner or appears to the Lord Chancellor to have other suitable qualifications or training, and
(b)appears to the Lord Chancellor to have special knowledge of and experience in cases of impairment of or disturbance in the functioning of the mind or brain.
(3)A General Visitor need not have a medical qualification.
(4)A Court of Protection Visitor—
(a)may be appointed for such term and subject to such conditions, and
(b)may be paid such remuneration and allowances,
as the Lord Chancellor may determine.
(5)For the purpose of carrying out his functions under this Act in relation to a person who lacks capacity (“P”), a Court of Protection Visitor may, at all reasonable times, examine and take copies of—
(a)any health record,
(b)any record of, or held by, a local authority and compiled in connection with a social services function, and
(c)any record held by a person registered under Part 2 of the Care Standards Act 2000 (c. 14) [F22or Chapter 2 of Part 1 of the Health and Social Care Act 2008]F22,
so far as the record relates to P.
(6)A Court of Protection Visitor may also for that purpose interview P in private.
Textual Amendments
F22Words in s. 61(5)(c) inserted (1.10.2010) by The Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010 (S.I. 2010/813), art. 17(6)