The Court of Protection Rules 2001

Explanatory Note

(This note is not part of the Rules)

These Rules replace the Court of Protection Rules 1994 (as amended). They regulate the procedure in respect of applications made under the Mental Health Act 1983.

The principal changes made by the Rules are:—

(a) The provision that such applications are to be made to the Court of Protection (“the Court”) whereas the previous rules provided for a division of functions between the Court and the Public Trustee;

(b) The requirement for the Court to review a Patient’s case from time to time where a medical certificate provided to it has expressed an opinion that there is a possibility of the Patient’s mental recovery (rule 35(2));

(c) The requirement that the current administration fee, which is payable on the first and every subsequent anniversary of the appointment of a Receiver until the termination of the proceedings, shall also be payable at such other times during the proceedings or at their termination as the Court may direct and that where the period for which the fee is payable is less than one year the fee payable shall be the proportion of the full fee as that period bears to one year (rule 78); and

(d) The requirement that the current receivership fees, which were formerly payable on the appointment of the Public Trustee as Receiver for a Patient and at such times as the Public Trustee considered convenient, will now be payable on the appointment of an officer of the Court as Receiver for a Patient, on the first and every subsequent anniversary of his appointment and at such other times during the proceedings or at their termination as the Court may direct and where the period for which the fee is payable is less than one year the fee payable shall be the proportion of the full fee as that period bears to one year (rule 81).

The Rules continue to contain provisions which:—

(a) provide that any function under them expressed to be exercisable by the Court may be exercised by a judge, the Master of the Court or, in certain cases, by an officer of the Court (rule 3);

(b) Specify the information to be provided on a first application for the appointment of a Receiver and require that an application to the Court in respect of the exercise of any of its other jurisdiction to be made by letter or, if the Court so directs, in specified form (rule 7);

(c) Provide for the Court to make a short order or direction without appointing a Receiver in certain cases (rule 8);

(d) Enable the Court to direct an officer of the Court or the Official Solicitor to make an application for the appointment or discharge of a Receiver, or for a direction relating to the exercise of any other function relating to a Patient’s property and affairs, where is appears to the Court that there is no other suitable person willing to make the application (rule 11);

(e) Enable the Court, where it considers that the interests of the Patient are not adequately represented in any proceedings, to direct the Official Solicitor to act as solicitor for the Patient in any of those proceedings (rule 13);

(f) Specify those persons who can apply to the Court for an order for the settlement or gift of a Patient’s property or for the execution of a Patient’s Will (rule 18);

(g) Provide for the service of notice of the hearing of an application to the Court (rules 19 to 23) and for the notification of an application for the appointment of a Receiver and of an intention to make such an application (rules 24 and 25);

(h) Specify the evidence to be filed on a first application for the appointment of a Receiver or for a short order or direction (rule 34);

(i) Regulate hearings before the Court (rule 37 to 41);

(j) Provide for the appointment of interim Receivers and for the remuneration of a Receiver (rules 42 and 43);

(k) Provide for the issuing of witness summonses (rule 48);

(l) Enable the Court, if it is dissatisfied with the conduct of any proceedings or the carrying out of an order (whether or not because of undue delay) to require a person to appear before it to explain the delay or other cause of its dissatisfaction (rule 49);

(m) Provide for reviews of, and appeals from, decisions of the Court (rules 54 and 55);

(n) Provide for the giving of security by a Receiver (other than where the Receiver is an officer of the Court or the Official Solicitor) (rules 56 to 60);

(o) Require a Receiver to deliver accounts to the Court annually, on the death or recovery of the Patient and at any other time that the Court directs and to answer any requisitions raised by the Court on such accounts (rules 61 and 65);

(p) Enable the Court to make inquiries as to the desirability of the appointment of a person as a Receiver (rule 67) and as to testamentary documents which may have been executed by a Patient (rule 70);

(q) Require a commencement fee to be paid on the first application for the appointment of a Receiver (rule 77) and a transaction fee to be paid in respect of an order or direction made by the Court under certain statutory provisions (rule 79);

(r) Require a fee to be paid in respect of a detailed assessment of costs (and on an appeal against a decision made in such an assessment) (rule 82);

(s) Relate to the Court’s discretion as to costs in proceedings before it (rule 85) and to the disallowance of certain unnecessary costs (rule 87)

The fees specified in the Rules remain the same as in the previous rules (Rule 76 and Appendix)