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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All in? Court confirms when a settlement is 'made' for the purposes of excluded property (Accuro Trust (Switzerland) SA v The Commissioners for HMRC)

Private Client analysis: This case considered the meaning of 'relevant property' under the settlements regime of the Inheritance Tax Act 1984 (IHTA 1984) and, in particular, the time at which this definition is to be tested. The question arose as to whether the trustees of an offshore trust established by a non-UK domiciled settlor were subject to the UK settlements regime in respect of property added to the trust after the settlor became deemed domiciled in the UK, or whether they were exempt from such charges as the trust consisted solely of excluded property. The First-tier Tribunal (FTT) held that whether trust property is excluded property is based on the status of the trust at the time that it was established, not at the time that the property in question was added to the settlement. As a result, the trust in this case did consist solely of excluded property and no inheritance tax (IHT) charges arose as a result of either the ten-year anniversary or capital distributions. The FTT was also asked to consider whether their jurisdiction was appellate, or supervisory only. The FTT held that, while their jurisdiction was supervisory, the questions raised by the trustees were relevant in establishing whether HMRC had acted reasonably and that the outcome (ie that the paid IHT should be refunded and that no further IHT was due) would be the same in either case. Written by Katherine Willmott, senior associate solicitor at Foot Anstey LLP.

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