Introduction, Your Role and the Role of Legal Support

1. How to use this Guidance

This guidance should be used by practitioners working in a statutory social care or healthcare when an application to the Court of Protection:

  1. May be required; or
  2. Is required.

It sets out:

  1. The circumstances when an application must be made;
  2. The circumstances when an application should be made;
  3. The circumstances when an application may be made;
  4. How to access the Court of Protection forms (COP forms);
  5. When different COP forms should be used;
  6. How to complete the COP1 application form;
  7. How to prepare and submit the mental capacity assessment;
  8. How to prepare and submit other evidence;
  9. How to complete the COP24 witness statement; and
  10. Top tips for providing an oral testimony in Court.

2. The Court of Protection and the Mental Capacity Act

The role of the Court of Protection

Click here to access information about the role and remit of the Court of Protection under the Mental Capacity Act.

The Court of Protection Rules 2017

The Court of Protection Rules 2017 set out the statutory requirements of:

  1. Applicants;
  2. The Court; and
  3. Others involved in proceedings.

This guidance has been written in line with current rules, which can be accessed in full by clicking here.

3. Your Role

Although you may have carried out the mental capacity assessment, or made the Best Interests decision an application to the Court of Protection is made:

  1. By the organisation that you represent; and not
  2. By you as an individual practitioner.

It is the role of the organisation, as the applicant to:

  1. Manage the application; and
  2. Support you in your role as their representative and witness.

Your role is to support the organisations application by providing:

  1. Information about the circumstances of the case;
  2. Evidence to support the application; and
  3. Where necessary, oral evidence in Court.

You should provide information:

  1. Whenever it is requested; and
  2. In the format requested by the organisation.

You may be asked to carry out certain tasks, such as:

  1. Helping to fill out a range of Court forms;
  2. Gathering evidence from records;
  3. Gathering evidence from others;
  4. Reviewing evidence and arranging it for submission; and
  5. Writing evidence statements.
You should be provided with appropriate legal support to carry out your role and any tasks asked of you.

4. The Role of Legal Support

It is important that a person with relevant legal expertise manages and co-ordinates:

  1. The application process;
  2. Any correspondence to or from the Court;
  3. How and when evidence is provided;
  4. How evidence is organised and submitted to the Court;
  5. How others are involved in the process, including how tasks may be delegated.

It is also important that they support you in your role, which includes:

  1. Developing your understanding of Court processes;
  2. Supporting you to evaluate the robustness of the evidence you provide;
  3. Advising you about how to complete various court forms appropriately; and
  4. Supporting you during any oral hearings.