EQUITABLE LIFE MEMBERS
Applications to the Court of Protection for the appointment of a Receiver
to the Court of Protection for the appointment of a Receiver
in The Solicitorsí Journal - 5th
March 2004 issue
Lyttleton MA LLM (Cantab) is a Solicitor based in Marble Arch London W1,
formerly with Freshfields and now a sole practitioner, with substantial
experience in advising elderly Clients primarily in Central and Greater
London .A member of the Court of Protection Receivership Panel , Trevor
Lyttleton specializes in
Court of Protection, Receivership and Enduring Power of Attorney and
mental health matters, with particular expertise in senile
dementia issues relating to
Trevor Lyttletonís legal expertise is supplemented by some 40 years direct personal responsibility, as Founder and Chairman of the National Charity, Contact the Elderly, for providing a vital lifeline of care and support to many thousands of elderly people through a team of some 4000 volunteers, throughout the UK (see website: www.contact-the-elderly.org). This experience has given him a unique insight into the mental problems and special needs of frail and incapacitated elderly people.
94(2) of the Mental Health Act 1983 defines a Ďpatientí as a person
who, on the medical evidence is incapable, by reason of mental disorder
of managing and administering his property and affairs. The Court of
Protection has unfettered discretion to appoint a receiver of a patient,
and will normally do so where he or she has more
than £16,000 in cash after payment of debts, property to be sold or
purchased, or sufficient income for the Court to consider a receiver
appointment to be necessary.
Formal applications for Receivership appointments are made to The Public Guardianship Office and relevant documents are obtainable from its website: http://www.guardianship.gov.uk/Protection.html#forms . Detailed information concerning the prospective receiver and affairs and property of the patient are required to enable the PGO to make an assessment of needs, and decide to what extent the receiver will require special supervision or support.
Neither the Mental Health Act 1983 nor the Court of Protection Rules specifies who should apply to the Court for a receivership appointment. The applicant normally seeks his own appointment, but may request the appointment of someone else
In order of preference the Court of Protection, will consider appointing as receiver:
∑ a spouse or close relation who has taken a personal interest in the alleged patientís affairs
∑ a close friend
∑ an officer of a local authority or
∑ a professional adviser.
In certain cases the Court may appoint a solicitor, who may apply to be remunerated for his services under Rule 43 of the Court of Protection Rules 2001 and should specify his proposed remuneration in Form CP5 (see below)
Joint receivership appointments are normally discouraged, as they tend in practice to be more costly and less likely to lead to simple and effective management of the patientís affairs.
If a suitable receiver cannot be found, the Court of Protection will consider whether to appoint a member of its professional Receivership Panel. If this is not considered to be in the clientís best interests, the Court will appoint the Chief Executive of the PGO to act as Receiver of Last Resort. In that event, day-to-day responsibility for managing the patientís financial affairs will be delegated to a PGO caseworker.
Before making a receiver appointment, the Court will take account of a variety of factors, established by case law, including:
∑ whether the estate is substantial or complex
∑ the patientís views and preferences
∑ the receiverís location
∑ the degree of love, devotion and affection between receiver and patient
∑ The care provision required for the patient
∑ Remuneration required by the receiver
formal application form no longer needs to be completed. A first
application for the appointment of a receiver merely has to state the
name and address of the applicant and proposed receiver and their
relationship (if any) to the patient in such manner as the court shall
direct:(Rule 7(1) of the Court of Protection Rules 2001). This
information is provided in the Receiverís Declaration (see below),
The application is submitted to The Public Guardianship Office, Archway Tower, 2 Junction Road, London N19 5SZ (DX 141150 Archway 2) by completing and returning the following documents.
1. The Receiverís Declaration
2. A Medical Certificate (Form CP3).
3. The Statement of Clientís Assets & Income (Form CP5).
4. Copies of Notification Letters
5. A copy of the alleged patientís will if any
6. Cheque for the Commencement Fee payable to ĎPublic
Guardianship Officeí of £70.00 (as of August 2003)
7. Covering letter*
The Applicant may wish to refer in the covering letter to issues relating to the patientís affairs, which he considers should be included in the First General Order, or to submit a Draft of the proposed Order for the Courtís consideration.
1 to 4 above are supplied with the PGO Application pack with the
booklets ďMaking an ApplicationĒ and ďDuties of a ReceiverĒ
The Receiverís Declaration
Whether or not he or another party makes the application, the prospective receiver must complete and sign the Receiverís Declaration, requiring him to provide the following information:
(a) his personal and contact details and relationship to the patient;
(b) his personal circumstances, current occupation and suitability: whether he has been bankrupt or insolvent, disqualified from acting as a company director, convicted of any criminal offence, or is aware of any conflicts of interest; whether he has held any previous receivership appointment or knows of any reason why he may be unable to carry out his duties as receiver
(c) he must demonstrate that he fully understands his duties and responsibilities if appointed receiver, by completing a series of undertakings that he will carry out seventeen specified obligations as receiver and has the Ďskills, time and knowledge to complete themí;
(d) he must explain why he wishes to be appointed receiver, showing he has considered the matter carefully and has the appropriate skills and, where appropriate, professional qualifications to act as receiver;
(e) he must declare that he or she has given accurate information, read the accompanying PGO booklet ĎMaking an Applicationí, and consents to such additional enquiries as may be required including credit agency checks.
The Medical Certificate (CP3)
Courtís jurisdiction is only exercisable where it is satisfied, after
considering medical evidence, that the patient is incapable of managing
property and affairs.
Submission of this evidence in the correct form is
therefore of key
importance in enabling the Court to take action, even when other papers are incomplete or cannot
be submitted. The
Court requires such evidence to be provided in the form of a
medical certificate (Form
CP3). Although the prescribed form is
not mandatory it should be
used in all cases as it contains important guidance to doctors and deals
clearly with the information that the Court will
require. Form CP3 obliges a
medical practitioner to state his full name and qualifications, specify
when the patient was last seen and to certify that
the patient is incapable
by reason of mental disorder of managing his property and affairs. The
form then requires the doctor to specify (i) the
nature of the mental
disorder and (ii) give reasons for this opinion. As it is often
overlooked, the latter requirement and the formís explanatory notes
should be drawn to the doctorís attention.
The doctor is also asked
to indicate the patientís
physical condition, age
and prospects of recovery to enable the Court to determine the
patientís needs and how capital
should be invested or
medical assessment can be obtained from any registered medical
practitioner and the
patientís GP, familiar his medical history, is often approached for
this purpose. However, in my experience of receivership applications,
GPs, especially in Central London, often find it hard to cope with their
own bureaucracy, and are reluctant to take on such assessments. I
therefore prefer to rely, with the GPís approval, on an experienced
psycho-geriatric consultant, whose fee is justified by superior
expertise and the saving in time and cost of instructing him, and
greater objectivity. This is especially valuable in cases of conflict
between family members, who are less likely to subject a consultant to
the kind of influence sometimes applied to a doctor who may also be
their own GP of longstanding. A psycho-geriatric consultantís
assessment also provides a more authoritative benchmark, is less subject
to legal challenge, and establishes a valuable contact with a reliable
specialist, whom both GP or carers can call upon in the event of an
emergency, or if the patientís mental condition so requires.
The medical certificate is confidential and prepared for the Court rather than for the patient or the receiver. If the practitioner is unwilling to issue a certificate without the patientís consent, which might not be forthcoming, the PGO may write to the practitioner directly requesting the certificate. Once completed the medical practitioner should return it to the solicitor lodging the application or directly to the PGO if there is no solicitor involved.
The Statement of Clientís Assets & Income (Form CP5).
aim of this lengthy form is to enable the Court to obtain sufficient
information to prepare the Draft Order without time-consuming
correspondence with the applicant and consequent delay in processing the
Application. The form should therefore provide accurate and detailed
personal circumstances and background, including details of family and
guardianship order or Power or Enduring
Power of Attorney has been made;
patient holds a driving licence,
Patient has made a Will (in
which case a copy must be filed with the Application, giving location
details of the original Will, if not held by the applicant).
∑ Financial circumstances, assets, liabilities, and needs. Income and fees charged for the patientís care and maintenance and other living costs, and Pension and Social Security details need to be provided, to establish whether there is likely to be a shortfall between income and expenditure.
The substantial preliminary work involved in furnishing relevant details may seem daunting to the uninitiated. These efforts, however, normally justify a more limited PGO involvement once the appointment has been made..
following filing of Application
The PGO will acknowledge receipt of the documents, state the time and date when the the Court will consider the Application, and may request further information. No personal attendance is normally required at these hearings, which usually take place within about 6 weeks of the filing of the application.
of application to Patient
Following the filing of a first application to appoint a receiver, notice must be given to the Patient (Rule 24 of the Court of Protection Rules 2001). Such Notice must be given personally (Rule 24 (1) (E) and must, as per the prescribed Notification Letter, consist of notice:-
(a) that an Application has been made
(b) of the effect , if made of
(i) the appointment of a receiver, or
(ii) such other order, direction or certificate as may have been applied for;
(c) of the identity of the applicant and, if different, that of any proposed receiver
(d) of any hearing fixed by the court and
(e) of such other information as the court may direct
A certificate of service has to be filed as soon as possible after service unless the court directs otherwise (COPRule 26 (1). The certificate must show where, when and how and by whom service was effected, and state whether the patient appeared, to the person giving it, to understand the notice. No order may be entered until at least 10 days after service of the notice.
to next of kin and others
If there is a spouse of the patient living, his or her written consent should be submitted in support of any application for a receiver to be appointed. Unless the court directs otherwise, the applicant must give notice of his intention to make any such application to 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 to such other persons who appear to the court to be interested as the court may specify (COPRule 25 (1). The relativesí details will have been listed in Form CP5. The Notification Letter (Document 4 above) is included in the Application Pack.
to space limitations, this article is confined to the basic application
process. For further details and post-application issues, read Heywood
and Massey Court of Protection Practice (Sweet &
Maxwell): Objections to the application by patient or
other parties: Paras.4-023 to 4-025, Contents of First
General Order: Paras 4-026 to 4-027; Interim Applications
for appointment of receiver ad interim where immediate provision has to
be made re the patientís property and affairs under COP Rule
42(1)(b): Paras. 4-028 to 4-034. For a fuller treatment
of practical aspects, read Chapter on Application to Appoint a Receiver
in Martin Terrellís excellent Practitionerís Guide to the
Court of Protection (LexisNexis).
Trevor Lyttleton 2004
LLM (CANTAB) Solicitor
Bryanston Court, George Street London W1H 7HA
020-7402 4810 Fax