THE COURT OF PROTECTION RULES 1994

• Citation: S.I. 1994/3046
• Sections: 102

Section 1 Citation and commencement

These Rules may be cited as the Court of Protection Rules 1994 and shall come into force on 22nd December 1994.

Section 2 Interpretation

(1) In these Rules, unless the context otherwise requiresexpressions used in the Supreme Court Act 1981 shall have the same meaning as they have for the purposes of that Act;

“ the Act ” means the Mental Health Act 1983;

“court” means the Court of Protection;

“direction” means a direction or authority given under the seal of the Public Trustee;

“entered” means entered in the books of the court or the Public Trust Office as appropriate;

“filed” means filed in the court office or the Public Trust Office as appropriate;

“function” means any power, discretion or function conferred by the Act;

“judge” means the Lord Chancellor or a nominated judge;

“Master” means the Master of the Court of Protection;

“officer” means an officer of the Court of Protection or of the Public Trust Office as appropriate;

“order” includes a certificate, direction or authority of the court under seal;

“patient” includes a person who is alleged to be or who the court has reason to believe may be incapable by reason of mental disorder of managing and administering his property and affairs;

“receiver” means a receiver appointed under section 99(1) of the Act;

“seal” means an official seal of the Court of Protection or the Public Trustee as appropriate and “sealed” shall be construed accordingly;

“stock” includes shares and also any fund, annuity or security transferable in the books kept by any body corporate or unincorporated company or society, or by an instrument of transfer either alone or accompanied by other formalities and includes any dividends paid in respect of them;

“Visitor” means one of the Lord Chancellor’s Visitors.

(2) Where, in these Rules, there is a reference to something which may be done by the court or the Public Trustee, the reference shall be construed as meaning the court or the Public Trustee as appropriate.

(3) In these Rules a form referred to by letter means the form so designated in the Schedule to these Rules or a form to the same effect with such variations as the circumstances may require or the court may approve and in respect of either the form designated in the Schedule or a variation of it, shall include a Welsh translation.

Section 3 Exercise of court’s functions

Where any function is (in whatever words) expressed by these Rules to be exercisable by the court then, subject to the provisions of the Act, that function may be exercised—

(a) by a judge;

(b) by the Master;

(c) to the extent to which he is authorised to exercise it under section 94 of the Act, by any nominated officer.

Section 4 Computation of time

(1) Where a period of time fixed by these Rules or by any order or direction of the court for doing any act expires on a day on which the appropriate office for doing that act is closed and for that reason the act cannot be done on that day, the act shall be in time if done on the next day on which that office is open.

(2) Where the act is required to be done within a specified period after or from a specified date, the period begins immediately after that date.

(3) Where any period of time fixed as mentioned in paragraph (1) is less than six days, any day on which the appropriate office is closed shall not be included in the computation of that period.

Section 5 Power to vary time

The court may extend or abridge the time limited by these Rules or any order or direction of the court for doing any act or taking any proceeding upon such terms as the court thinks fit and notwithstanding, in the case of an extension, that the time so limited has expired.

Section 6 Functions of the Public Trustee

(1) The Public Trustee may exercise all the functions conferred on the judge by Part VII of the Act except for the following functions which shall only be exercised by the court—

(a) the resolution of any contested application including any interim matters relating to it;

(b) the appointment and discharge of a receiver under section 99 of the Act;

(c) the appointment of a new receiver;

(d) the appointment of an interim receiver under rule 44;

(e) subject to rule 9, the determination of jurisdiction of the court under section 94(2) of the Act;

(f) the making of orders on applications under sections 96(1)(e), (i) and (k), 98, 100, 103 and 104 of the Act;

(g) the making of orders on applications under sections 96(1)(d) or 96(2) of the Act except where, in respect of a gift, it is payable out of the surplus income or capital, is insignificant in the context of the patient’s assets and is for a sum not more than £15,000;

(h) the making of orders relating to loans or other financial transactions where there is an element of gift except where it is payable out of the surplus income or capital, is insignificant in the context of the patient’s assets and is for a sum not more than £15,000;

(i) the making of directions under section 101 of the Act and in respect of property to which section 101 of the Act applies and for the severance of joint tenancies;

(j) the making of directions relating to any assets of a patient that are the subject of specific bequests or devises in his Will;

(k) the making of orders under sections 36(9) or 54 of the Trustee Act 1925 ;

(l) the making of orders determining proceedings;

(m) the making of orders relating to assets situated outside England and Wales and for the transfer of assets out of England and Wales;

(n) the giving of such directions as may be appropriate in relation to a Will made or proposed to be made by a patient.

(2) Where, in the exercise of any of his functions, the Public Trustee considers that it may be appropriate to restrict the rights of creditors under section 95(2) of the Act, or that payment should be made to persons other than the patient where the patient is insolvent, he shall refer the matter to the court for determination.

(3) Notwithstanding paragraph (1) the Public Trustee may, if he thinks fit, refer any matter to the court for determination.

(4) Nothing in this rule shall prevent the court from exercising any of its functions in relation to any matter being dealt with by the Public Trustee under paragraph (1).

(5) The Public Trustee shall have the power, where he is appointed receiver, to do anything which by virtue of paragraph (1) above, he would be empowered to authorise a receiver to do.

Section 7 Exercise of jurisdiction

Except where these Rules otherwise provide, any function may be exercised—

(a) without fixing an appointment for a hearing;

(b) by the court or the Public Trustee as appropriate of its or his own motion or at the instance or on the application of any person interested;

(c) whether or not any proceedings have been commenced in the court with respect to the patient.

Section 8 Forms of application

(1) Subject to the following provisions of this rule, a first application to the court for the appointment of a receiver shall be in Form A and an application to the court respecting the exercise of any of its other jurisdiction in relation to a patient may be made by letter unless the court directs that a formal application shall be made, in which case it shall be made in Form B.

(2) An application to the Public Trustee relating to the exercise of any of his functions in relation to a patient shall be made by letter or in such other manner as he may direct, unless he directs that a formal application be made to the court in which case it shall be made in Form B.

(3) An application in Form A shall be treated as an application for the appointment as receiver of the person named in the application or some other suitable person.

(4) On grounds of urgency the court or the Public Trustee as appropriate may dispense with the need for an application in writing.

(5) An application relating to the committal of a person for contempt of court shall be made to a judge but all other applications to the court shall be returnable in the first instance before the Master.

Section 9 Procedure for short order or direction without appointment of receiver

(1) Without prejudice to the generality of rule 7, and where the conditions in paragraph (2) below are satisfied—

(a) if an application for the appointment of a receiver for the patient has been made the court may instead made a short order under this rule; and

(b) if no such application has been made, the Public Trustee may—

(i) give a direction under this rule; or

(ii) require that such an application be made to the court.

(2) The conditions to be satisfied are that—

(a) the property of the patient does not exceed £5,000 in value; or

(b) it appears to the court or the Public Trustee that it is otherwise appropriate to proceed under this rule and that it is not necessary to appoint a receiver for the patient.

(3) A short order or direction under this rule is an order or direction directing an officer of the Public Trust Office or some other suitable person named in the order or direction to deal with the patient’s property, or any part of it, or with his affairs, in any manner authorised by the Act and specified in the order or direction.

Section 10 Date for hearing

(1) Upon receiving an application under rule 8 the court shall fix a date for the hearing of the application unless it considers that the application can properly be dealt with without a hearing, and upon the same ground the court may cancel any hearing fixed under this paragraph.

(2) Where a hearing is fixed under paragraph (1) an officer shall endorse the date of it on the application form, shall seal and return the form and retain a copy.

Section 11 Consolidation of proceedings

The court may allow one application to be made in respect of two or more patients or may consolidate applications relating to two or more patients, if in the opinion of the court the proceedings relating to them can be more conveniently dealt with together.

Section 12 Power to direct application by the Public Trustee or Official Solicitor

Where in the opinion of the court an application ought to be made for the appointment or discharge of a receiver or for the exercise of any other function with respect to the property and affairs of a patient, and there appears to be no other suitable person able and willing to make the application, or the court for any other reason thinks fit, the court may direct that the application be made by the Public Trustee or, if he consents, by the Official Solicitor.

Section 13 Power of the Public Trustee to make applications to the court or exercise functions of his own motion

Where it appears to the Public Trustee that an application should be made to the court for the exercise of any of its functions or that any of his own functions ought to be exercised, he may make an application or exercise such functions of his own motion.

Section 14 Representation of patient by receiver

(1) Except as mentioned in rule 20(c), (d) and (e), an application on behalf of a patient for whom a receiver has been appointed shall, unless the court otherwise directs, be made by the receiver in his own name.

(2) Subject to any directions given by the court, a patient for whom a receiver has been appointed may be represented by the receiver at any hearing relating to the patient or of which the patient has been given notice.

Section 15 Representation of patient by Official Solicitor

Where in any proceedings the court considers that the interests of a patient are not adequately represented, the court may, with the consent of the Official Solicitor, direct that the Official Solicitor shall act as solicitor for the patient either generally in the proceedings or for any particular purpose connected with the proceedings, except that it shall not be necessary to appoint the Official Solicitor to be receiver or guardian ad litem for the patient.

Section 16 Persons under disability

(1) In this rule “person under disability” means a minor or a patient for whom no receiver has been appointed.

(2) A person under disability shall not make an application in proceedings relating to another person except by his next friend and shall not resist an application in any such proceedings except by his guardian ad litem.

(3) Where a person is to be appointed next friend or guardian ad litem of a person under disability in substitution for the person previously acting as next friend or guardian ad litem, the appointment shall be made by the court but, except for this, an order of the court appointing a next friend or guardian ad litem of a person under disability shall not be necessary.

(4) Before the name of any person is used in any proceedings as next friend or guardian ad litem of a person under disability there shall be filed—

(a) a written consent of the first-mentioned person to act as next friend or guardian ad litem, as the case may be, of the person under disability in the proceedings, and

(b) a certificate by the solicitor acting for the person under disability certifying—

(i) that he knows or believes that the person to whom the certificate relates is a minor or patient giving (in the case of a patient) the grounds of his knowledge or belief, and

(ii) except where the person named in the certificate as next friend or guardian ad litem is the Official Solicitor, that the person so named has no interest in the proceedings adverse to that of the person under disability.

Section 17 Application under section 54 of the Trustee Act 1925

An application to the court with respect to the jurisdiction referred to in section 54(2) of the Trustee Act 1925 may be made only by—

(a) the receiver for the patient, or

(b) any person who has made an application for the appointment of a receiver which has not yet been determined, or

(c) a continuing trustee, or

(d) any other person who, according to the practice of the Chancery Division, would have been entitled to make the application if it had been made to the High Court.

Section 18 Application under section 36(9) of the Trustee Act 1925

No person other than a co-trustee, or other person with power to appoint a new trustee, may make an application to the court under section 36(9) of the Trustee Act 1925 for leave to appoint a new trustee in place of a patient.

Section 19 Application under section 96(1)(k) of the Act

The provisions of rule 17 shall apply with such modifications as may be necessary to an application under section 96(1)(k) of the Act for an order for the exercise of any power vested in a patient of appointing trustees or retiring from a trust.

Section 20 Application for settlement or gift of patient’s property or for execution of will of patient

An application under section 96(1)(d) of the Act for an order for the settlement or gift of any property of a patient, or an application under section 96(1)(e) of the Act for an order of execution for a patient of a will, may be made only by—

(a) the receiver for the patient, or

(b) any person who has made an application for the appointment of a receiver which has not yet been determined, or

(c) any person who, under any known will of the patient or under his intestacy, may become entitled to any property of the patient or any interest in it, or

(d) any person for whom the patient might be expected to provide if he were not mentally disordered,

(e) an attorney acting under a registered enduring power of attorney, or

(f) any other person whom the court or, where it relates to a function to be exercised by him, the Public Trustee, may authorise to make it.

Section 21 Notice of hearing

(1) Except where these Rules provide otherwise or the court directs otherwise the applicant shall give notice of the hearing of an application in accordance with the following provisions of this rule.

(2) Where a receiver has been appointed for a patient he shall, unless he is the applicant, be given notice of the hearing of any application relating to the patient.

(3) Where the application is one to which rules 17 or 19 above relate, notice of the hearing of the application shall also be given to every person who, according to the practice of the Chancery Division, would have been required to be served with the summons if the application had been made to the High Court.

(4) Notice of the hearing of the application shall also be given to such other persons who appear to the court to be interested as the court may specify.

(5) Notice of a hearing shall be given—

(a) in the case of a first application for the appointment of a receiver, or an application under rule 18, not less than ten clear days and

(b) in the case of any other application, not less than two clear days

before the date fixed for the hearing.

(6) For the purposes of this rule notice of a hearing is given if a copy of the sealed application form is served on the person concerned or notice is given in such other manner as the court may direct.

Section 22 Mode of service

Except where these Rules otherwise provide, any document required by these Rules to be served on any person shall be served by delivering it to him personally or, if in any particular case or class of case the court so directs, by sending it to him by first class post at his last known address.

Section 23 Service on solicitor

Where a solicitor for the person to be served with any document endorses on the document or a copy of it a statement that he accepts service on behalf of that person, the document shall be deemed to have been duly served on that person and to have been served on the date on which the endorsement was made.

Section 24 Substituted service

Where it appears to the court that it is impracticable for any reason to serve a document in accordance with rule 22, the court may make an order for substituted service of the document by taking such steps as the court may direct to bring it to the notice of the person to be served.

Section 25 Service on person under disability

(1) Unless the court otherwise directs, any document required by these Rules to be served on a person who is a minor or patient (in this rule referred to as a person under disability) shall be served—

(a) in the case of a minor who is not also a patient, on his parent or guardian or, if he has no parent or guardian, on the person with parental responsibility within the meaning of the Children Act 1989 ;

(b) in the case of a patient—

(i) on his receiver or, if he has no receiver,

(ii) on the person acting in pursuance of an order or direction made under rule 9, or, if there is no such person,

(iii) on an attorney acting under a registered power of attorney, or, if there is no such attorney,

(iv) on the person with whom he resides or in whose care he is;

and must be served in the manner required by these Rules.

(2) Notwithstanding anything in paragraph (1), the court may order that any document which has been served on the person under disability or on a person other than a person mentioned in that paragraph shall be deemed to be duly served on the person under disability.

(3) Nothing in this rule shall apply to an order required by rule 44 to be served on a patient.

Section 26 Notification of application for appointment of receiver, etc.

(1) Subject to paragraph (2) below, where—

(a) a first application is made for the appointment of a receiver for a patient or for an order authorising a person to do any act or carry out any transaction on behalf of a patient without appointing him receiver, or

(b) the court proposes to make a short order or the Public Trustee proposes to give a direction with respect to a patient’s property under rule 9.

the patient shall be notified in such manner as the court or the Public Trustee may direct.

(2) The court or, where rule 9(1)(b) applies, the Public Trustee, may at any time direct that no such notification shall be given if it or he is satisfied that—

(a) the patient is incapable of understanding it, or

(b) such notification would be injurious to the patient’s health, or

(c) for any other reason notification ought to be dispensed with.

(3) Where paragraph 2(c) applies, the court or the Public Trustee shall state the reason for dispensing with notification.

(4) Where the patient is a minor, notification under paragraph (1) of this rule shall be given, whether or not notification to the patient is dispensed with under paragraph (2) and unless the court otherwise directs, to his parent or guardian or, if he has no parent or guardian, to the person with parental responsibility within the meaning of the Children Act 1989.

Section 27 Notification to next of kin etc. of intention to make application for appointment of receiver

(1) Where an applicant proposes to make an application for the appointment of a receiver or a new receiver, the applicant shall give notice of his intention to—

(a) all relatives of the patient who have the same or a nearer degree of relationship to the patient than the applicant or proposed receiver; and

(b) such other persons who appear to the court to be interested as the court may specify;

unless the court directs that such notification shall be dispensed with.

(2) For the purposes of this rule, notice of the intention to make an application is given if the person concerned is notified by letter of the identities of the patient, the applicant and the proposed receiver and what the application is for.

Section 28 Certificate of service or notification

(1) If the court so directs, a certificate of service showing where, when, how and by whom service was effected shall be filed as soon as practicable after service of a document has been effected in accordance with these Rules.

(2) The provisions of paragraph (1) of this rule shall apply to the giving of notification under rules 26 and 27 as they apply to the service of documents and references in that paragraph to service and the effecting of service shall accordingly be construed as including references to notification and the giving of notification respectively.

Section 29 Affidavit evidence

(1) Except where these Rules provide otherwise, evidence in proceedings governed by these Rules shall be given by affidavit.

(2) An affidavit for use in proceedings under these Rules may be sworn—

(a) in England or Wales, before any person authorised to take affidavits under the Commissioners for Oaths Acts 1889 and 1891 , under the Solicitors Act 1974 , or under the Courts and Legal Services Act 1990 or before any officer of the court of, or above, the rank of higher executive officer;

(b) outside England and Wales, before any person before whom an affidavit may be sworn for use in the Supreme Court.

Section 30 Unsworn evidence

(1) Notwithstanding rule 29(1), the court may accept and act upon a statement of facts or such other evidence, whether oral or written, as the court considers sufficient, although not given on oath and whether or not it would be admissible in a court of law apart from this rule.

(2) The court may give directions as to the manner in which a statement of facts or other written evidence under paragraph (1) above is to be given but subject to such directions any such statement or other evidence shall—

(a) be drawn up in numbered paragraphs and dated; and

(b) be signed by the person by whom it is made or given.

Section 31 Written questions to Visitors

(1) Where a Visitor’s report, or information contained in such a report, has been disclosed to any person in pursuance of section 103(8) of the Act, the court may, on the application of any person who appears to the court to be interested, give leave for written questions relevant to the issues before the court to be put to the Visitor by whom the report was made.

(2) The questions sought to be put to the Visitor shall be submitted to the court, which may put them to the Visitor with such amendments, if any, as it thinks fit and the Visitor shall give his replies in writing to the questions so put.

(3) The court may disclose the replies given by a Visitor under this rule to any person who appears to the court to be interested, or to his legal or medical adviser, on such conditions, if any, as it thinks fit.

(4) No Visitor shall be required to give written evidence for the purpose of any proceedings to which these Rules relate, other than in accordance with this rule.

Section 32 Cross-examination of deponent

Any person who has made an affidavit or given a certificate or other written evidence for use in proceedings under these Rules may be ordered by the court to attend for cross-examination.

Section 33 Administration of oaths

The court may direct that an oath be administered to any witness or interpreter in any proceedings before the court.

Section 34 Filing of written evidence

(1) Before an affidavit, certificate or other written evidence is used in any proceedings under these Rules it shall be filed but the court may make an order on the basis of such evidence before it is filed if the person tendering it undertakes to file it before the order is drawn up.

(2) There shall be endorsed on every affidavit, certificate or other written evidence the name and address of the solicitor, if any, for the person on whose behalf it is filed.

Section 35 Use of evidence in subsequent proceedings

(1) Except where the court otherwise directs, evidence which has been used in any proceedings relating to a patient may be used at any subsequent stage of those proceedings or in any other proceedings relating to the same patient or to another member of the patient’s family.

(2) Without prejudice to paragraph (1) above, the Master may, upon application being made for the purpose, authorise the use of any such evidence in any legal proceedings that the Master may specify.

Section 36 Evidence to be filed on a first application for receiver, etc

(1) On the issue of a first application for the appointment of a receiver for a patient or for a short order or direction under rule 9 authorising any person to do any act or carry out any transaction on behalf of a patient without appointing him receiver, the applicant shall, unless the court or the Public Trustee otherwise directs, file a medical certificate and evidence of family and property.

(2) In this rule—

“a medical certificate” means a certificate by a registered medical practitioner that the patient is incapable, by reason of mental disorder, of managing and administering his property and affairs; and

“evidence of family and property” means a certificate or, if the court so orders in a particular case, an affidavit, giving particulars of the patient’s relatives, property and affairs and of the circumstances giving rise to the application.

(3) Rule 30(2) above applies to unsworn evidence of family and property as it applies to unsworn evidence generally.

Section 37 Evidence of patient’s recovery or death

(1) Where at any stage of proceedings relating to a patient the court has reason to believe that the patient has recovered, it may require medical evidence of the recovery to be furnished by such person as it thinks appropriate.

(2) Where at any stage of proceedings relating to a patient, the Public Trustee has reason to believe that the patient has died, he may require evidence of the death to be furnished by such person as he thinks appropriate.

Section 38 Proof of amount due to public authority

The amount due to any public authority for the past maintenance of a patient may, unless the Public Trustee otherwise directs, be proved by the filing of an account certified under the hand of the proper officer of the authority.

Section 39 Privacy of applications

(1) Every application shall be heard in chambers unless, in the case of an application for hearing by the judge, the judge otherwise directs.

(2) The Public Trustee shall give such directions as he thinks fit concerning the privacy of applications made to him.

Section 40 Persons attending hearing

Subject to rule 16, the court may determine what persons are to be entitled to attend at any stage of the proceedings relating to a patient.

Section 41 Representation at hearing

Where two or more persons appearing at a hearing are represented by the same legal representative, the court may, if it thinks fit, require any of them to be separately represented.

Section 42 Reference of proceedings to judge

Where a function of the court is not being exercised by a judge, the court, after giving such directions as it thinks fit, shall refer to the judge any proceedings or any question arising in any proceedings which ought, by virtue of any enactment or in its opinion, to be considered by the judge.

Section 43 Reference of proceedings to Master

The judge may refer any proceedings before him or any question arising in them to the Master for inquiry and report.

Section 44 Interim provision

(1) Where in the opinion of the court or the Public Trustee it is necessary to make immediate provision in relation to the property and affairs of a patient for any of the matters referred to in section 95(1) of the Act—

(a) the court or, where appropriate, the Public Trustee, may by certificate or direction direct or authorise any named person to do any act or carry out any transaction specified in the certificate or direction; or

(b) the court may by order appoint an interim receiver for the patient and, subject to any direction given by the court, such appointment shall continue until further order.

(2) An order appointing an interim receiver shall, unless the court otherwise directs, be served upon the patient within such time as the order may specify and the patient may, within such further time as the order may specify, apply under rule 56 for the review of the order by the court or, if the order was made by a judge, apply to have the order set aside.

Section 45 Remuneration of receiver

(1) Where a receiver is appointed for a patient, the court or the Public Trustee may, during the receivership, allow the receiver remuneration for his services at such amount or at such rate as it or he considers reasonable and proper and any remuneration so allowed shall constitute debt due to the receiver from the patient and his estate.

(2) No request by a receiver to have the sum payable for his remuneration fixed after the death or recovery of the patient shall be entertained unless the court or the Public Trustee has during the receivership directed that remuneration be allowed and the request is made within six years from the date of the receiver’s discharge.

Section 46 Appointment of receivers with survivorship

Where in the opinion of the court two or more persons ought to be appointed receivers for the same patient and one or more of them ought to continue to act after the death or discharge of any of the others, the court may when appointing them receivers direct that the receivership shall continue in favour of the surviving or continuing receiver or receivers.

Section 47 Sealing and filing of orders

Every order, certificate, direction or authority of the court or the Public Trustee which is drawn up shall, when entered, be sealed and filed.

Section 48 Entry of orders after notification to patient

(1) Where—

(a) an order is made on a first application appointing a receiver for a patient or directing or authorising any person to do any act or carry out any transaction on behalf of a patient without appointing him receiver; or

(b) an order or direction with respect to a patient’s property is made under rule 9,

the order or direction shall not be entered until the expiration of ten clear days after the patient has been notified in accordance with rule 26(1) unless such notification is dispensed with.

(2) Nothing in paragraph (1) above shall prevent the entry of an interim order, certificate or direction under rule 44 for the protection of a patient’s property or for the application of a patient’s property for his benefit.

Section 49 Enforcement of orders

Every writ of execution or other process for the enforcement of an order of the court shall be issued out of the Central Office of the Supreme Court.

Section 50 Summoning of witnesses

(1) In any proceedings under these Rules the court may allow or direct any person to take out a witness summons in Form C requiring the person named in it to attend before the court and give oral evidence or produce any document.

(2) An application by a person to be allowed to take out a witness summons shall be made by filing a statement giving—

(a) the name and address of the person making the application and of his solicitor, if any;

(b) the name, address and occupation of the proposed witness;

(c) particulars of any document which the proposed witness is to be required to produce; and

(d) the grounds on which the application is made.

(3) A witness summons shall be served on the witness personally a reasonable time before the day fixed for his attendance and he shall be entitled to the same conduct money and payment for expenses and loss of time as if he had been summoned to attend the trial of an action in the High Court.