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47 | Power to call for reports |
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(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. |
| 5 |
(3) | The court may require a local authority, or an NHS body, to arrange for a |
| |
| |
(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 |
| 10 |
| |
(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. |
| 15 |
(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— |
| |
| |
(b) | any record of, or held by, a local authority and compiled in connection |
| |
with a social services function, and |
| 20 |
(c) | any record held by a person registered under Part 2 of the Care |
| |
Standards Act 2000 (c. 14), |
| |
| 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. |
| 25 |
(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 |
| |
| |
(10) | “NHS body” has the meaning given in section 148 of the Health and Social Care |
| 30 |
(Community Health and Standards) Act 2003 (c. 43). |
| |
(11) | “Requirement” means a requirement imposed under subsection (2) or (3). |
| |
| |
48 | Applications to the Court of Protection |
| |
(1) | No permission is required for an application to the court for the exercise of any |
| 35 |
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 |
| |
| |
(c) | by the donor or a donee of a lasting power of attorney to which the |
| 40 |
| |
|
| |
|
| |
|
(d) | by a deputy appointed by the court for a person to whom the |
| |
| |
(e) | by a person named in an existing order of the court, if the application |
| |
| |
(2) | But, subject to Court of Protection Rules and to paragraph 21(2) of Schedule 3 |
| 5 |
(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 |
| |
| |
(a) | the applicant’s connection with the person to whom the application |
| 10 |
| |
(b) | the reasons for the application, |
| |
(c) | the benefit to the person to whom the application relates of a proposed |
| |
| |
(d) | whether the benefit can be achieved in any other way. |
| 15 |
(4) | “Parental responsibility” has the same meaning as in the Children Act 1989 |
| |
| |
49 | Court of Protection Rules |
| |
(1) | The Lord Chancellor may make rules of court (to be called “Court of Protection |
| |
Rules”) with respect to the practice and procedure of the court. |
| 20 |
(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 |
| |
| |
(c) | for the allocation, in such circumstances as may be specified, of any |
| 25 |
specified description of proceedings to a specified judge or to specified |
| |
| |
(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 |
| 30 |
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 |
| |
| |
(g) | for enabling the court to proceed with, or with any part of, a hearing in |
| 35 |
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; |
| 40 |
(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 |
| |
| |
(3) | Court of Protection Rules may, instead of providing for any matter, refer to |
| 45 |
provision made or to be made about that matter by directions. |
| |
|
| |
|
| |
|
(4) | Court of Protection Rules may make different provision for different areas. |
| |
| |
(1) | The President of the Court of Protection may, with the concurrence of the Lord |
| |
Chancellor, give directions as to the practice and procedure of the court. |
| |
(2) | Directions as to the practice and procedure of the court may not be given by |
| 5 |
anyone other than the President of the Court of Protection without the |
| |
approval of the President of the Court of Protection and the Lord Chancellor. |
| |
(3) | Nothing in this section prevents the President of the Court of Protection, |
| |
without the concurrence of the Lord Chancellor, giving directions which |
| |
contain guidance as to law or making judicial decisions. |
| 10 |
| |
(1) | Subject to the provisions of this section, an appeal lies to the Court of Appeal |
| |
from any decision of the court. |
| |
(2) | Court of Protection Rules may provide that where a decision of the court is |
| |
| 15 |
(a) | a person exercising the jurisdiction of the court by virtue of rules made |
| |
| |
| |
| |
| an appeal from that decision lies to a prescribed higher judge of the court and |
| 20 |
not to the Court of Appeal. |
| |
(3) | For the purposes of this section the higher judges of the court are— |
| |
(a) | in relation to a person mentioned in subsection (2)(a), a circuit judge or |
| |
| |
(b) | in relation to a person mentioned in subsection (2)(b), a circuit judge; |
| 25 |
(c) | in relation to any person mentioned in subsection (2), one of the judges |
| |
nominated by virtue of section 44(2)(a) to (c). |
| |
(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; |
| 30 |
(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 higher 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— |
| 35 |
(i) | the appeal would raise an important point of principle or |
| |
| |
(ii) | there is some other compelling reason for the Court of Appeal |
| |
| |
(e) | as to any considerations to be taken into account in relation to granting |
| 40 |
or refusing permission to appeal. |
| |
|
| |
|
| |
|
| |
| |
(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— |
| 5 |
(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, |
| 10 |
(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 |
| |
| 15 |
(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 |
| 20 |
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 |
| |
| |
(4) | The court may, in any proceedings— |
| 25 |
| |
(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 |
| 30 |
any person exercising a right of audience or right to conduct litigation on his |
| |
| |
(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 |
| 35 |
| |
(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 |
| |
| |
54 | Fees and costs: supplementary |
| 40 |
(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 |
| |
| |
(b) | for charging fees and costs upon the estate of the person to whom the |
| |
| |
(c) | for the payment of fees and costs within a specified time of the death of |
| 5 |
the person to whom the proceedings relate or the conclusion of the |
| |
| |
(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. |
| 10 |
| |
| |
(1) | For the purposes of this Act, there is to be an officer, to be known as the Public |
| |
| |
(2) | The Public Guardian is to be appointed by the Lord Chancellor. |
| 15 |
(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, provide him |
| |
with such officers and staff as the Lord Chancellor thinks necessary for the |
| |
proper discharge of his functions. |
| 20 |
(5) | Any functions of the Public Guardian may, to the extent authorised by him, be |
| |
performed by any of his officers. |
| |
56 | Functions of the Public Guardian |
| |
(1) | The Public Guardian has the following functions— |
| |
(a) | establishing and maintaining a register of lasting powers of attorney, |
| 25 |
(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 |
| 30 |
(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 |
| |
| |
(e) | receiving security which the court requires a person to give for the |
| 35 |
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, |
| 40 |
(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. |
| |
|
| |
|
| |
|
(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 |
| |
| |
(3) | The Lord Chancellor may by regulations make provision— |
| |
(a) | conferring on the Public Guardian other functions in connection with |
| 5 |
| |
(b) | in connection with the discharge by the Public Guardian of his |
| |
| |
(4) | Regulations made under subsection (3)(b) may in particular make provision— |
| |
(a) | as to the giving of security by deputies appointed by the court and as to |
| 10 |
the enforcement and discharge of security so given; |
| |
(b) | as to the fees which may be charged by the Public Guardian; |
| |
(c) | as to the way in which, and funds from which, such fees are to be paid; |
| |
(d) | as to the making of reports to the Public Guardian by deputies |
| |
appointed by the court and others who are directed by the court to |
| 15 |
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— |
| |
| |
(b) | any record of, or held by, a local authority and compiled in connection |
| 20 |
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), |
| |
| so far as the record relates to P. |
| |
(6) | The Public Guardian may also for that purpose interview P in private. |
| 25 |
Court of Protection Visitors |
| |
57 | Court of Protection Visitors |
| |
(1) | A Court of Protection Visitor is a person who is appointed by the Lord |
| |
| |
(a) | a panel of Special Visitors, or |
| 30 |
(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 |
| 35 |
experience in cases of impairment of or disturbance in the functioning |
| |
| |
(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 |
| 40 |
(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— |
| |
| |
(b) | any record of, or held by, a local authority and compiled in connection |
| 5 |
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), |
| |
| so far as the record relates to P. |
| |
(6) | A Court of Protection Visitor may also for that purpose interview P in private. |
| 10 |
| |
Miscellaneous and general |
| |
| |
| |
For the avoidance of doubt, it is hereby declared that nothing in this Act is to |
| 15 |
be taken to affect the law relating to murder or manslaughter or the operation |
| |
of section 2 of the Suicide Act 1961 (c. 60) (assisting suicide). |
| |
Private international law |
| |
59 | International protection of adults |
| |
| 20 |
(a) | gives effect in England and Wales to the Convention on the |
| |
International Protection of Adults signed at the Hague on 13th January |
| |
2000 (Cm. 5881) (in so far as this Act does not otherwise do so), and |
| |
(b) | makes related provision as to the private international law of England |
| |
| 25 |
| |
| |
| |
| “the 1985 Act” means the Enduring Powers of Attorney Act 1985 (c. 29), |
| |
| “advance decision” has the meaning given in section 24(1), |
| 30 |
| “the court” means the Court of Protection established by section 43, |
| |
| “Court of Protection Rules” has the meaning given in section 49(1), |
| |
| “Court of Protection Visitor” has the meaning given in section 57, |
| |
| “deputy” has the meaning given in section 16(2)(b), |
| |
| “enactment” includes a provision of subordinate legislation (within the |
| 35 |
meaning of the Interpretation Act 1978 (c. 30)), |
| |
| “health record” has the meaning given in section 68 of the Data Protection |
| |
Act 1998 (c. 29) (as read with section 69 of that Act), |
| |
| “independent consultee” has the meaning given in section 34(1), |
| |
|
| |
|