Good practice guidance on accessing the Court of Protection
How to apply to the Court of Protection
Permission to apply Open
In some cases, to make an application to the Court of Protection, permission to do so from the court is needed. Permission is required for the following groups:
- local authorities
- NHS trusts
- family members or friends
- professionals
- advocates, including IMCAs (with the exception of the section 39C IMCA role).
The following have right of access to the court and do not need permission to apply:
- the person concerned
- the person’s litigation friend
- attorneys appointed under a Lasting Power of Attorney to which the decision relates
- deputies appointed by the court for matters in relation to decisions the deputies have to make
- relevant person’s representatives and 39C IMCAs
- the Public Guardian
- the OS
- the subject of an existing order of the court that names them as a person who can apply if the application relates to the matters raised in the existing order.
If there is uncertainty about whether permission is needed in a particular case, the Court of Protection can be contacted for advice. Contact details can be found in Appendix 1.
The application process Open
All of the forms referred to below can be located on the HMCS website.
To make an application to the court, the following forms need to be completed:
- COP1 (PDF) - Application form
- COP1B (PDF) - Supporting information for personal welfare applications (this can be done once permission is granted, but submitting it now will save later delay)
- COP2 (PDF) - Permission form (if needed)
- COP3 (PDF) - Assessment of capacity form
If making an application as a person’s litigation friend, the forms should be filled out in the person’s name and signed by the litigation friend. The litigation friend will then take on the role of applicant.
The cost of the application Open
Applying to the court costs £400, which must be paid at the time of making the application. Cheques are payable to the ‘Court of Protection’.
The applicant may be exempt from the paying the fee if they are in receipt of certain benefits. They may, alternatively, qualify to pay a reduced amount if they are on a low income or have assets of less than £16,500. Further guidance on this can be found in the Court of Protection guidelines on the direct.gov website. If these provisions apply, the applicant should complete a COP44 (PDF) form along with the application forms listed above.
Legal aid is available to cover the cost of applications by people who are deprived of their liberty under a standard authorisation, their relevant person’s representative or 39C IMCAs.
What happens next?
Once filled in, the relevant forms, with payment if applicable, should be sent to:
Court of Protection
Archway Tower 2 Junction Road London N19 5SZ/p>
Urgent and ‘fast track’ applications Open
There will be circumstances where an immediate decision needs to be made. In this situation, a person should contact the court and ask to speak to the ‘urgent business officer’ to discuss the case.
They can arrange for the application to be seen by a Judge. This service is available on weekdays during office hours. Outside of these times, a person should telephone the Royal Courts of Justice and ask to speak to security, who will put them in contact with the relevant clerk. Contact details can be found in Appendix 1.
Examples of urgent decisions include:
- Whether to treat a person who lacks capacity to consent with chemotherapy for their cancer and there is dispute about what is in their best interests
- Whether to perform major surgery (such as open heart surgery or neurosurgery) on a person who lacks capacity to consent and there is dispute about what is in their best interests
- An application for an urgent Deprivation of Liberty Safeguards authorisation where it is thought that a person who lacks capacity is being unlawfully deprived of their liberty.
It is important to highlight that this process is only to be used when an immediate decision needs to be made. Practice direction 10B (PDF) states:
4 ‘In some cases, urgent applications arise because applications to the court have not been pursued sufficiently promptly. This is undesirable, and should be avoided. A judge who has concerns that the facility for urgent applications may have been abused may require the applicant or the applicant’s representative to attend at a subsequent hearing to provide an explanation for the delay.’
In Re A (Adult) and Re C (Child); A Local Authority v A [2010] EWHC 978 (Fam), Lord Justice Munby cautions further about the use of urgent application in all but the most serious of cases:
“Too often, in my experience, local authorities seeking the assistance of the court in removing an incapacitated or vulnerable adult from their home against their wishes or against the wishes of the relatives or friends caring for them, apply ex parte (without notice) and, I have to say, too often such orders have been made by the court without any prior warning to those affected and in circumstances where such seeming heavy-handedness is not easy to justify and can too often turn out to be completely counter-productive... it seems to me that, generally speaking, a local authority will only be justified in seeking a without notice order for the removal of an incapacitated or vulnerable adult in the kind of circumstances which in the case of a child would justify a without notice application for an emergency protection order”.
There may be circumstances where a decision needs to be made quickly but not urgently, for example if a person thinks that the timing of a decision is going against the person’s best interests. In this situation, the court may agree to ‘fast track’ the case. Similarly to the process for urgent applications, the person should contact the court and ask to speak to the ‘fast-track business officer’ to discuss the case. This process is used in regards to financial decisions where a person is at risk of losing money in the interim period.
