Eddie Fardell and Brian Bacon reminisce about the good old days of the Court of Protection

Such a description may resonate with those practitioners who have been dealing with the Court of Protection for a number of years. The Mental Capacity Act 2005 has been with us for just over four years, and it has certainly been a learning curve.

So much has changed. We have had to learn a whole new piece of legislation, a new set of procedural rules, and understand the Code of Practice. Some of us have even had to learn how to litigate. The terms ‘advocate’, ‘respondent’ and ‘bundles’ were certainly not in my professional vocabulary before 1 October 2007. Although they weren’t really in my non-professional vocabulary either.

Most will agree that the Act has been a very significant piece of legislation in the development of how the law treats those who lack capacity. We have come a long way from using definitions such as ‘lunatics’ or ‘idiots’. These were legal terms not that long ago.

From many perspectives, the Act is a very clever, ambitious and far-reaching statute. It is designed to give autonomy, but also protection, to those who need it. I would certainly not like the old law back now and I think the same can be said for my colleagues here and other practitioners who specialise in this area.

Times gone by

However, many of us would like the old Court back. This is when I do feel nostalgic. Do you remember the nominated officers? And the welcoming informality of being able to conduct a straightforward application by letter? Not by completing forms and paying £400 to get a decision on a matter I would consider to be entirely straightforward. I do not wish to over exaggerate; where formal applications are necessary, the process is there for the protection of the vulnerable individual.

But that hasn’t stopped me from harking back to a time when it did not take me several weeks, if not months, to get an order or decision from the Court. An order which, when it finally arrives, I find often does not cover what was sought in my application.

As the Court will not accept correspondence, this means more forms to complete, which have to go before a judge. Indeed, as Senior Judge Denzil Lush indicated in a recent talk I attended, not only has this process thwarted the will of parliament, but it has also hampered the Court in processing routine and non-contentious orders quickly and cost-effectively. And frustrated many, if not all, court users. Until earlier this year, this seemed to be just what we had to live with.

To add insult to injury the cost of dealing with such applications and issues has rocketed. We have found that since the inception of the Act costs have increased by at least a third.

Cold front

On the whole, consultation papers don’t excite me. But in June, one did catch my eye. This was asking for comment on a proposal concerning the delegation to court officers of some decisions in the Court. I responded like a shot, almost pleading for the nominated officer system to be reinstated. I even went so far as naming some of the case workers at the Court who I thought would make an excellent job of this.

And now the circle has been completed. I learned just the other day that from Monday 12 December, the nominated officers return, albeit with a new label: authorised officers. They will be processing non-contentious property and financial affairs applications (i.e. where there has been no indication anyone will object to the application).

We don’t know what difference this is going to make in practice. It will not, of course, reintroduce the luxury of making an application by letter and the client will still have the fee to pay. But it might mean that we will get our orders and decisions in a more timely manner. This would at least be a step in the right direction.

But as much as I would have liked to conclude this first blog on a positive note, I fear that, in the short term at least, the delays are going to get worse. After almost exactly ten years at Archway Tower the Court is moving back to the Royal Courts of Justice on the Strand. This is going to happen in the first week of January 2012. It may be a rather pessimistic view, but I can envisage a long and cold winter this year…

Eddie Fardell is a partner and head of the Court of Protection team and Brian Bacon is a partner in the Court of Protection team at Thomson Snell & Passmore