CONTESTED DEPUTYSHIP AND LPA/EPA APPLICATIONS: A PROCEDURAL GUIDE

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1 CONTESTED DEPUTYSHIP AND LPA/EPA APPLICATIONS: A PROCEDURAL GUIDE A presentation given by Alex Troup of St. Johns Chambers to Gloucestershire Solicitors for the Elderly on Thursday 9 th June 2011 (1) Contested Deputyship Applications 1. Main sources:- ss of the Mental Capacity Act 2005 ( MCA 2005 ) Parts 5, 9, 12 and 19 of the Court of Protection Rules 2007 ( CofPR 2007 ) 2. By the time an objection is made, the applicant will have:- Confirmed that P lacks capacity If necessary, applied for permission to bring the application Applied for a deputyship on application form (COP1) Served application on respondents named in para 4.1 of COP1 Notified persons named in para 4.2 of COP1 of application Filed a certificate of service 3. The objection An objector must file an acknowledgement of service (COP5) within 21 days of service/notification of application (r.72 CofPR 2007) COP5 must include, among other things:- o grounds for opposition o any different order sought o evidence on which objector intends to rely (except expert evidence) o any directions sought Page 1 of 8

2 4. Notification of objection Court will serve COP5 on applicant and any other person who has filed a COP5 (r.72(3) CofPR 2007) 5. Case management Court of Protection has wide case management powers contained in Parts 5 and 12 CofPR 2007 N.B. Overriding objective in Part 2 CofPR 2007 The court can make orders of its own motion, but should not summarily determine the case except in plain cases: Re LD, KD & Anr v. Havering [2010] WTLR 69 Directions hearings are often conducted by telephone Typical directions deal with such matters as: o clarification of objections o further evidence o expert evidence o transfer to regional courts such as Bristol o listing for trial 6. Does P need to be joined as a party? This is for the court to decide (r.73(4) and r.85(2)(c) CofPR 2007) Generally P will be joined if application is for welfare deputy Generally P will not be joined if application is for property and affairs deputy If joined, P will usually act by the Official Solicitor 7. Hearings Generally held in private: r.90 CofPR 2007; Independent News and Media Ltd v. A [2010] EWCA Civ 343; [2010] WTLR 55 Generally before DJ or CJ Quasi-adversarial Page 2 of 8

3 8. Costs Governed by Part 19 CofPR 2007 General rules are that: o no order for costs in relation to proceedings relating to P s welfare o costs of proceedings relating to P s property and affairs will be ordered to be paid by P or charged to his estate Court may depart from general rule if circumstances justify doing so 9. Applicable Statutory Principles The decisions (1) whether to appoint a deputy and (2) if so, who that deputy should be, must be taken in P's best interests (s.1(5) MCA 2005) Under s.4 MCA 2005, when assessing "best interests" the court must take into account all relevant circumstances including:- o P's past and present wishes and feelings (and in particular any relevant written statement made by him when he had capacity) o The beliefs and values that would be likely to influence his decision if he had capacity o the other factors that he would be likely to consider if he were able to do so The court must also take into account, if it is practicable and appropriate to consult them, the views of: o anyone named by the person as someone to be consulted on the matter in question or on matters of that kind o anyone engaged in caring for the person or interested in his welfare o any donee of a LPA granted by P o any deputy appointed by the court S.16(4) MCA 2005 provides that when deciding whether it is in P s best interests to appoint a deputy, the court must have regard (in addition to the matters set out in s.4) to the principles that:- Page 3 of 8

4 o a decision by the court is to be preferred to the appointment of a deputy to make a decision, and o the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances 10. G v. E [2010] EWHC 2512 (Fam) Baker J rejected an application for appointment of welfare and property and affair deputies. The Judge emphasised s.16(4) MCA It was said (at para.59) that instances where it would be appropriate to appoint a deputy would be those which involve a series of decisions (for example, about medical procedures) and where the assets of an incapacitated adult are of a magnitude that requires regular management. It was also said (at para.61) that whilst P should wherever possible be cared for by his family, that does not justify the appointment of family members simply because they are willing and able to serve in that capacity. (2) Contested LPA applications 11. Main sources:- ss.9-14 and 22 of MCA 2005 Part 2 of Schedule 1 to MCA 2005 Parts 5, 9, 12 and 19 of CofPR 2007 Part 2 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 ( LEPR 2007 ) 12. By the time an objection is made:- the applicant will have notified the named persons identified in the instrument of the intended application to register LPA the applicant will have applied to register the LPA Page 4 of 8

5 the Public Guardian will have notified the donor/donee(s) 13. The grounds for objection are set out in r.15(2) LEPR 2007 as follows:- One or more of the requirements for the creation of an LPA have not been met The power has been revoked or has otherwise come to an end The ground set out in s.22(3)(a) MCA 2005, namely that fraud or undue pressure was used to induce the donor to create the power The ground set out in s.22(3)(b) MCA 2005, namely that the donee has behaved, is behaving or proposes to behave in a way that (i) contravenes or would contravene his authority; or (ii) is not or would not be in the donor s best interests. 14. Burden of proof: Where objection is based on the grounds contained in s.22(3) MCA 2005, burden is on objector Otherwise burden on applicant 15. The procedure for objecting depends upon who is making the objection and on what ground:- (1) Objection by donor See r.14a LEPR 2007 Objection on any ground is made to Public Guardian Deadline is 5 weeks from date of notification On receipt of objection, Public Guardian cannot register LPA but must notify applicant of objection Applicant must then apply to court (2) Objection by donee or named person (a) If objects on ground that LPA has been revoked by one of the circumstances set out in s.13(3) or (6) MCA 2005, i.e. Page 5 of 8

6 P s bankruptcy Donee s disclaimer, death, bankruptcy, winding up or lack of capacity Dissolution or annulment of any marriage or civil partnership between donor and donee Then the procedure is as follows:- Objector notifies Public Guardian of objection within 5 weeks of notification (r.14 LEPR 2007) If Public Guardian accepts that objection is made out, then he must notify applicant that he cannot register LPA (r.16(c) LEPR 2007) Applicant applies to court (b) If objects on any other ground, then: objector must apply to court within 5 weeks of notification (r.15(3) LEPR 2007) (3) Other persons Can object but no specified procedure Should apply to court under s.22 MCA Procedure for court applications General procedure for making applications set out in Part 9 CofPR 2007 But in relation to any application relating to an LPA, procedure is amended by r.67 CofPR 2007 Main differences are: o Form COP7 not COP1 o Application form, any supporting documentation, copy of the LPA and acknowledgement of service (COP5) should be served on donee(s) and donor within 21 days of issue of application o Applicant should file certificate of service (COP20) within 7 days of service Page 6 of 8

7 o No application fee 17. Court will then give case management directions leading to trial (see paras.5-8 above) (3) Contested EPA Applications 18. Main sources:- Sch.4 to MCA 2005 Part 3 of LEPR 2007 r.68 CofPR Practice Direction 9H 19. By the time an objection is made, the Attorney will have:- notified donor, relatives specified in para.6 of Sch 4 to MCA 2005, and any co-attorney applied to Public Guardian for registration of EPA 20. The five grounds for objection are listed in para.13(9) of Sch.4 to MCA 2005: The power purported to have been created by the instrument was not valid as an enduring power of attorney The power created by the instrument no longer subsists The application is premature because the donor is not yet becoming mentally incapable That fraud or undue pressure was used to induce the donor to create the power That, having regard to all the circumstances and in particular the attorney s relationship to or connection with the donor, the attorney is unsuitable to be the donor s attorney 21. Burden of proof Page 7 of 8

8 In every case the burden lies on the objectors: Re W (Enduring Power of Attorney) [2001] Ch Making the objection No prescribed form, but must set out specified details (r.25(2) LEPR 2007) Deadline is 5 weeks from notification (para.13(4) of Sch.4 to MCA 2005) On receipt of valid objection, Public Guardian cannot register cannot register LPA but must notify applicant of objection Objector or attorney must then apply to court 23. Procedure for court applications Set out in r.68 CofPR 2007 and Practice Direction 9H Application made using Form COP8, supported by evidence Application must be served within 21 days of issue 24. Court will then give case management directions leading to trial (see paras.5-8 above) Page 8 of 8

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