The Court of Protection Rules 2001

• Citation: S.I. 2001/824
• Sections: 99

Section 1 Title and Commencement

These Rules may be cited as the Court of Protection Rules 2001 and shall come into force on 1st April 2001.

Section 2 Interpretation

(1) In these Rules, unless the context otherwise requires—

expressions used in the Supreme Court Act 1981 shall have the same meanings as they have for the purposes of that Act;

“ the Act ” means the Mental Health Act 1983;

“attended hearing” means a hearing where one or more of the parties to the proceedings have been invited to attend the court for the determination of the application;

“court” means the Court of Protection;

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

“entered” means entered in the books of the court;

“filed” mean filed in the court office;

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

“hearing” means an attended or unattended hearing;

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

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

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

“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 and “sealed” shall be construed accordingly;

“stock” includes shares in 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) In these Rules—

(a) any reference to a numbered rule is a reference to the rule of these Rules so numbered in these Rules;

(b) any reference in a rule to a numbered paragraph is a reference to the paragraph so numbered in the rule in which the reference occurs;

(c) a form referred to by letter alone 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 all cases shall include a Welsh translation of the form.

Section 3 Exercise of the court’s functions

Where any function (in whatever words) is 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 an act expires on a day on which the court office for doing that act is closed and for that reason the act cannot be done on that day, the act shall be done 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 as mentioned in paragraph (1) is less than six days, any day on which the court office is closed shall not be included in that computation.

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 proceedings 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 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 of its 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 7 Forms of application

(1) Subject to paragraph (3), a first application to the court for the appointment of a receiver shall state the name and address of the applicant and the proposed receiver and their relationship (if any) to the patient in such manner as the court shall direct 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 otherwise directs that it should be formal, in which case it shall be made in Form A.

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

(3) On grounds of urgency the court may dispense with the need for an application in writing.

(4) 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 made in the first instance to the Master.

Section 8 Procedure for short order or direction without appointment of a receiver

(1) Without prejudice to the generality of Rule 6, if it appears to the court that—

(a) the property of the patient does not exceed £10,000 in value; or

(b) it is otherwise appropriate to proceed under this rule,

and that it is not necessary to appoint a receiver for a patient, the court may make a short order or direction under this rule whether or not the application was made for the appointment of a receiver for the patient.

(3) A short order or direction under this rule is an order or direction directing an officer of the court 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 9 Date for hearing

(1) Upon receiving an application under rule 7 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 on this ground the court may cancel any hearing fixed under this paragraph.

(2) Where a hearing is fixed under paragraph (1) an officer shall notify the applicant, by letter, of the date and time of the hearing.

Section 10 Consolidation of Proceedings

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

Section 11 Power to direct applications by officer of the court 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 a direction with regard to 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 an officer of the court or, if he consents, the Official Solicitor.

Section 12 Representation of patient by receiver

(1) Except as mentioned in rule 18 (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 a receiver in his own name.

(2) Subject to any directions given by the court, a patient for whom a reciever 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 13 Representation of patient by the Official Solicitor

Where, in any proceedings, the court considers that the interests of the patient are not adequately represented, the court may, with the consent of the Official Solicitor, direct that the Official Solicitor shall act as a 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 14 Persons under a disability

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

(2) A person under a 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 a 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 a 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 a disability there shall be filed—

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

(b) a certificate by the solicitor acting for the person under a 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 is the Official Solicitor, that the person so named has no interest in the proceedings adverse to that of the person under a disability.

Section 15 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 fully 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 in the High Court.

Section 16 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 17 Application under section 96(1)(k) of the Act

The provisions of rule 15 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 18 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, or

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

(f) any other person whom the court may authorise to make it.

Section 19 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 15 or 17 relate, notice of the hearing of the application shall also be given to every person who would have been required to be served with the application notice 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 16, 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 shall be given to the person concerned in such manner as the court may direct.

Section 20 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—

(a) delivering it to him personally;

(b) sending it to him by first class post or through a document exchange at his last known address; or

(c) by transmitting it to him at his last known address by fax or other electronic means.

Section 21 Service on solicitor

Where a solicitor acting 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 22 Substituted service

Where it appears to the court that it is impracticable for any reason to serve a document in accordance with rule 20, 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 23 Service on person under a 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 a 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 as defined in section 3 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 under rule 8, 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 a 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 a disability or on a person other than a person mentioned in that paragraph shall be deemed to be duly served on the person under a disability.

(3) Nothing in this rule shall apply to an order required by rule 42 to be served on a patient.

Section 24 Notification of application for appointment of receiver, etc

(1) 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 direction;

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

(2) Where the patient is a minor, notification under paragraph (1) shall be given 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 25 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, in such manner as the court may direct, of the identities of the patient, the applicant and the proposed receiver and supplied with such additional information as the court may direct.

Section 26 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) shall apply to the giving of notification under rules 24 and 25 as they apply to the service of documents and references in that paragraph to service shall accordingly be construed as including references to notification and the giving of notification respectively.

Section 27 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 28 Unsworn evidence

(1) Notwithstanding rule 27(1), the court may accept and act upon a statement of facts or other such 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) 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 given.

Section 29 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 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 the 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.

(5) In this rule, “Visitor” means a Medical or Legal Visitor.

Section 30 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 31 Administration of oaths

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

Section 32 Filing of written evidence

(1) Before an affidavit certificate or other 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, acting for the person on whose behalf it is filed.

Section 33 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), the Master may, upon application being made for that purpose, authorise the use of such evidence in any legal proceedings that he may specify.

Section 34 Evidence to be filed on a first application for receiver, etc

(1) Where a first application has been made for the appointment of a receiver for a patient or for a short order or direction under rule 8 authorising any person to do any act or carry out any transaction on behalf of a patient without appointing him receiver—

(a) the applicant shall, unless the court otherwise directs, file a medical certificate and evidence of family and property; and

(b) the court may—

(i) require the applicant to produce to it such evidence as it shall direct of the suitability of the applicant to be appointed a receiver or to do any such act or carry out any such transaction without being appointed receiver; and

(ii) make such enquiries as it shall think fit with regard to the suitability of the applicant for such appointment.

(2) In this rule, “evidence of family and property” means a certificate or, if the court so directs, in a particular case, an affidavit giving particulars of the patient’s relatives and such other persons as the court may direct, property and affairs and of the circumstances giving rise to the application.

(3) Rule 28 applies to unsworn evidence of family and property as it applies to unsworn evidence generally.

Section 35 Evidence of patient’s recovery or death and inquiry by court as to whether patient has recovered

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

(2) The court shall, from time to time, review a patient’s case where a medical certificate provided to the court expressed an opinion that there is a possibility of mental recovery and make such inquiries and carry out such investigations as it thinks fit to establish whether or not the patient has recovered.

Section 36 Proof of amount due to public authority

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

Section 37 Privacy of applications

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

(2) The court shall give such directions as it thinks fit concerning the privacy of applications made to it.

Section 38 Persons attending the hearing

Subject to rule 14 the court may determine what persons are to be entitled to attend at any stage of the proceedings relating to a patient.

Section 39 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 40 Reference of proceedings to judge

Where a function of the court is not being exercised by a judge, the court, after giving such direction 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 41 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 42 Interim provision

(1) Where in the opinion of the court 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 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 54 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 43 Remuneration of receiver

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

(2) No request by a receiver to have the sum payable for this remuneration fixed after the death or recovery of the patient shall be entertained unless the court 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 44 Appointment of receivers with survivorship

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

Section 45 Sealing and filing of orders

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

Section 46 Entry of order after notification to a 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 under rule 8, 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 24(1) unless such notification is dispensed with.

(2) Nothing in paragraph (1) shall prevent the entry of an interim order, certificate or direction under rule 42 for the protection of a patient’s property or for the application of a patient’s property for his benefit.

Section 47 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 48 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 B 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 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 of expenses and loss of time as if he had been summoned to attend the trial of an action in the High Court.

Section 49 Powers of court where undue delay, etc

(1) If the court is dissatisfied with the conduct of any proceedings or the carrying out of an order whether by reason of undue delay or otherwise, the court may require the person having the conduct of the proceedings, or any other person appearing to be responsible, to explain the delay or any other cause of dissatisfaction, and may then make such order for expediting the proceedings or otherwise as may be appropriate.

(2) For the purposes of paragraph (1), the court may direct any person to make any application and to conduct any proceedings and carry out any directions which the court may specify; and the court may, if it thinks fit and he consents, appoint the Official Solicitor to act as solicitor for the patient in the proceedings in the place of any solicitor previously acting for him.

Section 50 Order for examination of patient

In any proceedings relating to a patient, a judge or Master may make an order for the patient’s attendance at such time and place as he may direct for examination by the Master, a Visitor or any medical practitioner.