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The Court of Protection Rules 2007

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PART 8PERMISSION

General

50.  Subject to these Rules and to section 50(1) of, and paragraph 20 of Schedule 3 to, the Act, the applicant must apply for permission to start proceedings under the Act.

(Section 50(1) of the Act specifies persons who do not need to apply for permission. Paragraph 20 of Schedule 3 to the Act specifies an application for which permission is not needed.)

Where the court’s permission is not required

51.  The permission of the court is not required—

(1) where an application is made by–

(a)the Official Solicitor; or

(b)the Public Guardian;

(2) where the application concerns —

(a)P’s property and affairs, unless the application is of a kind specified in rule 52;

(b)a lasting power of attorney which is, or purports to be, created under the Act; or

(c)an instrument which is, or purports to be, an enduring power of attorney;

(3) where an application is made in accordance with Part 10; or

(4) where a person files an acknowledgment of service or notification in accordance with this Part or Part 9, for any order proposed that is different from that sought by the applicant.

Exceptions to rule 51(2)(a)

52.—(1) For the purposes of rule 51(2)(a), the permission of the court is required to make any of the applications specified in this rule.

(2) An application for the exercise of the jurisdiction of the court under section 54(2) of the Trustee Act 1925(1), where the application is made by a person other than–

(a)a person who has made an application for the appointment of a deputy;

(b)a continuing trustee; or

(c)any other person who, according to the practice of the Chancery Division, would have been entitled to make the application if it had been made in the High Court.

(3) An application under section 36(9) of the Trustee Act 1925 for leave to appoint a new trustee in place of P, where the application is made by a person other than–

(a)a co-trustee; or

(b)another person with the power to appoint a new trustee.

(4) An application seeking the exercise of the court’s jurisdiction under section 18(1)(b) (where the application relates to making a gift of P’s property), (h) or (i) of the Act, where the application is made by a person other than–

(a)a person who has made an application for the appointment of a deputy;

(b)a person who, under any known will of P or under his intestacy, may become entitled to any property of P or any interest in it;

(c)a person who is an attorney appointed under an enduring power of attorney which has been registered in accordance with the Act or the regulations referred to in Schedule 4 to the Act;

(d)a person who is a donee of a lasting power of attorney which has been registered in accordance with the Act; or

(e)a person for whom P might be expected to provide if he had capacity to do so.

(5) An application under section 20 of the Trusts of Land and Appointment of Trustees Act 1996(2), where the application is made by a person other than a beneficiary under the trust or, if there is more than one, by both or all of them.

Permission - supplementary

53.—(1) The provisions of rule 52(2) apply with such modifications as may be necessary to an application under section 18(1)(j) of the Act for an order for the exercise of any power vested in P of appointing trustees or retiring from a trust.

(2) Where part of the application concerns a matter which requires permission, and part of it does not, permission need only be sought for that part of it which requires permission.

Application for permission

54.  The applicant must apply for permission by filing a permission form and must file with it—

(a)any information or documents specified in the relevant practice direction;

(b)a draft of the application form which he seeks permission to have issued; and

(c)an assessment of capacity form, where this is required by the relevant practice direction.

What the court will do when an application for permission to start proceedings is filed

55.  Within 14 days of a permission form being filed, the court will issue it and—

(a)grant the application in whole or in part, or subject to conditions, without a hearing and may give directions in connection with the issue of the application form;

(b)refuse the application without a hearing; or

(c)fix a date for the hearing of the application.

Persons to be notified of the hearing of an application for permission

56.—(1) Where the court fixes a date for a hearing under rule 55(c), it will notify the applicant and such other persons as it thinks fit, and provide them with—

(a)subject to paragraph (2), the documents mentioned in rule 54; and

(b)a form for acknowledging notification.

(2) The court may direct that any document is to be provided on an edited basis.

Acknowledgment of notification of permission application

57.—(1) Any person who is notified of an application for permission and who wishes to take part in the permission hearing must file an acknowledgment of notification in accordance with the following provisions of this rule.

(2) The acknowledgment of notification must be filed not more than 21 days after notice of the application was given.

(3) The court will serve the acknowledgment of notification on the applicant and on any other person who has filed such an acknowledgment.

(4) The acknowledgment of notification must—

(a)state whether the person acknowledging notification consents to the application for permission;

(b)state whether he opposes the application for permission, and if so, set out the grounds for doing so;

(c)state whether he proposes that permission should be granted to make an application for a different order, and if so, set out what that order is;

(d)provide an address for service, which must be within the jurisdiction of the court; and

(e)be signed by him or his legal representative.

(5) The acknowledgment of notification may include or be accompanied by an application for directions.

(6) Subject to rules 120 and 123 (restrictions on filing an expert’s report and court’s power to restrict expert evidence), where a person opposes the application for permission or proposes that permission is granted for a different order, the acknowledgment of notification must be accompanied by a witness statement containing any evidence upon which that person intends to rely.

Failure to file acknowledgment of notification

58.  Where a person notified of the application for permission has not filed an acknowledgment of notification in accordance with rule 57, he may not take part in a hearing to decide whether permission should be given unless the court permits him to do so.

Service of an order giving or refusing permission

59.  The court will serve—

(a)the order granting or refusing permission;

(b)if refusing permission without a hearing, the reasons for its decision in summary form; and

(c)any directions,

on the applicant and on any other person notified of the application who filed an acknowledgment of notification.

Appeal against a permission decision following a hearing

60.  Where the court grants or refuses permission following a hearing, any appeal against the permission decision shall be dealt with in accordance with Part 20 (appeals).

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