The Court of Protection and supporting services

Jurisdiction

The Court of Protection as we know it today was created by the Mental Capacity Act 2005 (MCA 2005), which came into force on 1 October 2007, and has jurisdiction over the property, financial affairs, personal welfare and healthcare of people who lack mental capacity to make decisions for themselves.

Prior to 1 October 2007, applications to the Court of Protection under the jurisdiction of the Mental Health Act 1983 (MeHA 1983) were handled by the Public Guardianship Office. Under the new jurisdiction of MCA 2005, the Court of Protection is a separate self-contained body that is responsible for handling its own applications and processes.

Although the powers of the Court of Protection are defined by MCA 2005, its authority can only be exercised by the judges nominated by the Lord Chancellor who must be from among the judges specified in MCA 2005, s 46(2), which include a range of judges from district judges to the President of the Family Division. MCA 2005 therefore provides for the exercise of the court's powers at different judicial levels.

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High Court judgment demonstrates usefulness of section 423 of the Insolvency Act 1986 in Schedule 1 claims (Re P (A Child) (Financial Provision))

Family analysis: In this Schedule 1 case the mother received, for her son’s benefit: a housing fund of nearly £1m (the property to be held on trust); child maintenance (including ‘HECSA’/carer’s allowance) until completion of his first degree; and lump sums in respect of his capital needs and her own substantial liabilities (chiefly relating to her unpaid legal fees). The father (whose resources could be measured in the ‘tens of millions of pounds’) had sought to prejudice the mother’s claims via transferring his valuable shares to family members, who then transferred the same into a trust structure (settled under Czech law). A further onwards transfer was then made of the trust’s assets into a Liechtenstein foundation. Inferences were drawn by the court in respect of the level of the father’s wealth, and specifically as to the value of the transferred shares. Detailed findings were made against him in respect of the identified transactions, which had been the focus of the mother’s section 423 application. Although a section 423(2) order was not actually made, the application was adjourned pending the father’s compliance with the award, with security in the sum of £600,000 also ordered, alongside a continuation of the freezing orders made earlier in the proceedings. David Wilkinson, solicitor at Slater Heelis, considers the issues.

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