Urgent applications in the court of protection / Nazreen Pearce, Sue Jackson.
2010
KD737 .P43 2010 (Map It)
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Items
Details
Author
Title
Urgent applications in the court of protection / Nazreen Pearce, Sue Jackson.
Published
Bristol : Jordans, [2010]
Copyright
©2010
Call Number
KD737 .P43 2010
ISBN
9781846612152 (pbk.)
1846612152 (pbk.)
1846612152 (pbk.)
Description
xxx, 552 pages : forms ; 25 cm
System Control No.
(OCoLC)610166999
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Added Author
Table of Contents
Foreword
v
Preface
vii
Table of Cases
xvii
Table of Statutes
xxi
Table of Statutory Instruments
xxv
Table of Practice Directions and Codes of Practice
xxvii
List of Abbreviations
xxix
pt. I
General
ch. 1
Introduction
3
ch. 2
General Principles
7
Law and practice
7
Introduction
7
To whom does the Act apply?
8
Key principles that underpin the Act
9
Test of capacity
10
Diagnostic stage
10
The functional stage
11
The person's ability to understand the information provided
12
The ability to retain information
12
The ability to use or weigh the information as a test of capacity
13
The ability to communicate
13
Threshold of incapacity in cases of urgency
13
Assessment of capacity
14
Best interests - s 4
16
Independent mental capacity advocates---ss 35-39
19
Permission to apply
19
Factors which the Court must take account of when considering an application for permission
20
Procedure for application for permission
21
Allocation---r 86
22
Costs
23
Precedent
26
pt. II
Personal Welfare and Deprivation of Liberty
ch. 3
Welfare Decisions---Residence, Contact, Sexual Relations
31
Law and practice
31
Introduction
31
Young person between the ages of 16-18 years
34
The assessment
36
The pathway plan
37
The functions of the personal adviser
38
Capacity to marry and capacity to have sexual relations
38
Residence
43
Independent mental capacity advocate---ss 38 and 39
46
Contact
47
Court's powers to make welfare orders
49
Welfare orders and deprivation of liberty
50
Practice and procedure
51
Procedural guide for welfare order
53
Precedents
55
ch. 4
Deprivation of Liberty
79
Law and practice
79
Introduction
79
Background
79
What are the Art 5 rights which must be respected?
82
What amounts to a deprivation of liberty?
82
Restrictions for the benefit of the person
86
Relevance of consent
87
Relevance of the freedom to leave
88
Safeguards
88
The Court of Protection's powers to make declaration authorising deprivation of liberty
89
What is meant by restraint
92
Restraint or deprivation of liberty in a hospital or care home
93
When do the deprivation of liberty safeguards apply
93
The s 5 provisions
93
The Sch A1 provisions
94
The qualifying requirements
95
The age requirement
95
The mental health requirement
95
The mental capacity requirement
95
The best interests requirement
96
The eligibility requirement
96
The no refusals requirement
97
Standard authorisation
97
The best interests assessment
98
Position where equivalent assessments have already been carried out
98
Supervisory body's duty to give authorisation
99
Duty of the managing authority
100
Rights of third party to require consideration of unauthorised detention by the supervisory body
100
Urgent applications
101
Appointment of relevant person's representative
102
The Court's powers in relation to standard and urgent authorisation under Sch Al
102
Procedure
103
When can an application be made to the Court of Protection
104
Who can apply without permission
105
How to apply
106
Steps to be taken before issuing an application
106
Issuing an application
107
The Court Office
108
After issue/directions given
109
The first hearing
109
Orders the Court can make
109
Appeals
110
Practice in relation to without notice applications
110
Example of orders
111
Procedural guide for deprivation of liberty order
113
ch. 5
Urgent Medical Treatment
117
Law and practice
117
Introduction
117
Persons who lack capacity---s 2
118
Inability to make decision---s 3
119
Best interests---s 4
119
Refusal of assessment/treatment
120
Undue influence in decision making
123
Phobia
124
Fear, panic and anxiety
125
Pain
126
Abuse of drugs
126
Religious beliefs
127
The unborn child
127
The common law doctrine of ǹecessity' and the position under the Mental Capacity Act 2005
129
Practice and procedure
130
Is permission required---s 50 and Part 8
131
How to apply---Parts 8-10 of the COP Rules and PD 9C and 10A
131
What will the Court do if permission is granted to make the application
132
What the applicant must do if the application is granted
133
What the person served with or notified of the application should do
134
Hearing
134
Powers of the Court of Protection in medical treatment cases
135
Costs
135
Appeals
135
Procedural guide for applications for urgent treatment
137
Precedents
139
ch. 6
Serious Medical Treatment
143
Law and practice
143
Introduction
143
Definition of "serious medical treatment' and "serious consequences'
144
Withholding /withdrawing ANH from a person in a persistent vegetative state (PVS) and cases of CPR
146
What of cases where there is some awareness in P in a PVS?
146
Cardio-pulmonary resuscitation (CPR)
149
Cases involving organ or bone marrow donation by a person who lacks capacity
150
Non-therapeutic sterilisation
151
Other cases where the case should be treated as requiring serious medical treatment
151
Termination of pregnancy
152
Use of reasonable force
153
Experimental medical treatment
153
Emergency medical treatment
155
Advance decision---ss 24-26
157
Validity of the decision
159
Conditions which must be satisfied for an effective advance decision relating to life-sustaining treatment
160
Effect of an advance decision
160
Independent mental capacity advocates---ss 35-37
161
The purpose of the IMCA
161
Definition of clauses referred to above
162
Functions of the IMCA
163
Practice and procedure
165
Allocation
165
Steps to be taken pre-proceedings
166
The application form
166
The applicant
167
Permission to apply
168
Court fees
169
Urgent applications
170
Parties to the application
171
Respondent to the application
171
Persons (although not respondents) who should be notified
171
Steps that the respondent/s need to take (PD 9C)
172
First directions
172
Form of draft order
173
Procedural guide for an application in cases of serious medical treatment
174
Precedents
177
pt. III
Property and Affairs
ch. 7
Suspension and Revocation of Deputy Appointment
185
Law and practice
185
Background
185
The Court's approach when appointing a deputy
185
Court's powers in relation to personal welfare
186
Court's powers in relation to property and affairs
187
Who can be a deputy?
188
Costs
188
Restrictions on deputies
189
Revocation/variation of appointment
190
How to make the application for revocation/suspension
190
Is permission required
190
How to apply
191
Urgent application
191
The Court
191
Service
192
The respondent/s to the application
192
Procedural guide for suspension/removal of deputy
193
Precedents
195
ch. 8
Enduring Powers of Attorney
217
Law and practice
217
Background
217
Characteristic of EPAs
217
Contents of the notice
218
Grounds of objections
219
Revocation
219
Legal effect of registration
220
Court's powers
220
The court's power to confirm revocation on application by the donor
221
The court's power to direct cancellation of a registered instrument
221
Cancellation of registration by Public Guardian
222
Practice and procedure
222
How to apply
222
Service
223
Certificate of notification
224
The Court
224
Procedural guide for registration of Enduring Power of Attorney and objecting to registration and cancellation of the power
225
Precedents
226
ch. 9
Revocation of Lasting Powers of Attorney
227
Law and practice
227
Background
227
Conditions and restrictions
227
Registration of the Lasting Power of Attorney
229
Grounds of objection
230
The Court's powers to revoke and cancel
231
How to apply
233
Procedural guide for registration of Lasting Power of Attorney and objecting to registration and cancellation of the power
234
Precedents
235
ch. 10
Statutory Wills
241
Law and practice
241
Introduction
241
Position under the Act
243
Best interest and P's wishes
243
Capacity
245
Factors to be considered before making an application
246
Procedure
247
Who may apply for a statutory will
247
Respondents to an application for a statutory will---PD 9F(9)
248
Person who must be notified of the application
248
The application form
250
Information to be provided with the application form---PD 9F(6)
250
A copy of any existing will
251
Any consents to act as proposed executors
251
Details of family members
251
Valuation of assets
252
A schedule of the patient's current and future needs
252
Details of any capital gains tax etc
252
An explanation of the effect if any, that the proposed changes will have on the patient's circumstances, preferably in the form of ̀before and after' schedule of assets and income
252
Evidence required
252
Provision that may be made in a will
253
Requirements relating to execution
253
Effect of execution
253
Procedure on execution of a statutory will
254
Procedural guide
255
Precedents
258
ch. 11
Enforcement
269
Law and practice
269
Background
269
Penal notice
269
Freezing orders and injunctions
270
Procedure
272
Permission
273
How to apply
273
Issue
274
Service
274
The respondent/s to the application
275
Orders
275
Committals
275
Service of order to be enforced
277
Use and content of prescribed forms and evidence in support
277
The content of the affidavit
278
Service of the application for committal
278
Oral hearing
279
Burden and standard of proof
279
Disposal of the committal application
279
Power of the Court to commit on its own initiative
279
Discharge of person committed
280
Form of committal order
280
Procedural guide
281
Precedent
282
Forms
284
ch. 12
Appeals
291
Law and practice
291
Introduction
291
Avenues of appeal
291
Grounds for allowing an appeal
292
The decision below was ẁrong'
292
Permission to appeal
294
Matters to be taken into consideration when considering an application for permission
295
Appellant's notice
295
Extension of time
296
Documents to be filed with the appellant's notice
296
Respondent's notice
298
Documents to be filed with the respondent's notice
298
Service
299
Power of the appeal judge on appeal
299
Determination of appeals
299
pt. IV
Forms
Court of Protection Forms
304
Lasting Powers of Attorney Forms
460
Enduring Powers of Attorney Forms
513
Deprivation of Liberty Forms
527
Index
545