Invaluable guide to CoP

This updated edition addresses a fast-developing area of law. In the foreword to the first edition, Sir Mark Potter, former president of the Family Division and of the Court of Protection, states: ‘The resulting Court of Protection Practice usefully brings together statutory materials and key forms, and case law supporting practice and procedures in the Court of Protection, together with authoritative comment from the authors. It was laid out in a logical manner, easy to follow, and will be invaluable both for those who are already familiar with mental capacity and those who are new to this area of the law.’

The 2025 edition echoes Sir Mark’s words. Created under the Mental Capacity Act 2005, the Court of Protection is a specialist court with responsibility to determine whether someone lacks capacity to make decisions for themselves. It also has the power to make decisions on that person’s behalf if they lack capacity. 

This book runs to almost 3,000 pages, underlining the complexity of the Court of Protection’s work. It is impossible to focus on the entirety of the areas covered by this book. I will, however, select three particular aspects of the Court of Protection’s work. 

One area, often overlooked, relates to statutory wills. A statutory will is a term used when a will is made on behalf of a person who lacks capacity to make a will, pursuant to an order of the Court of Protection under the Mental Capacity Act 2005, section 18(1). No will can be made without a formal application for the consideration of a judge. A will made in this way is no different from a normal will made by an adult with testamentary capacity, save that it cannot apply to immoveable property situated outside England and Wales. 

There are fewer than 300 statutory will applications made each year. Given that a will is a powerful expression of a person’s wishes, and bearing in mind that a person has the right to make a will or not to make a will, courts do not interfere with this right lightly. Examples of when a statutory will should be considered include whether there are concerns over the validity of an existing will. A statutory will application cannot be used to conduct an examination into the validity of an earlier act. But a new (statutory) will might avoid future conflicts and allow beneficiaries and claimants to resolve their differences, bearing in mind the testator’s best interests. Detailed guidance is provided on the procedure to be followed when applying for a statutory will. 

Parliament’s recent focus has been on the subject of assisted dying. The Terminally Ill Adults (End of Life) Bill is currently going through parliament. Assistance to end life would only be provided where the High Court has declared that the statutory requirements have been met. There are proposals to amend this provision. The Court of Protection is not part of the High Court. If the bill passes, there will, however, be some indirect impact on the Court of Protection, because it would involve the assessment of capacity by doctors and perhaps judges, an area where the Court of Protection has a particular expertise.

The subject of ‘fluctuating’ capacity is an area in which the writer of this review is currently litigating on behalf of an elderly and unwell client. There are two schools of thought: the so-called ‘longitudinal’ approach and the ‘anticipatory’ approach. The longitudinal approach stipulates that, when considering whether P has the capacity to make a decision, the court may make a declaration of incapacity if the evidence establishes that, over a period of time, P will lack the capacity to make relevant decisions. In other words, the court will be looking at a continuous state of affairs, where P’s demands may be unpredictable and could, on some occasions, be urgent. Pursuant to the anticipatory approach, the court does not make a declaration of capacity. Instead, it makes a declaration that an act done in relation to P will be lawful, but only contingent on P losing capacity. Some have argued that this is ‘the least interventionist approach to capacity that promotes KZ’s autonomy and capacity’ (Theis J in Leicestershire CC v P and others [2024] EWCOP 53).

There is in-depth coverage of recent and important case law, along with narrative sections relating to the Court of Protection’s jurisdiction, all of which is written by judges and experienced practitioners. There is a new section dealing with the jurisdiction of the Court of Protection, insofar as incapacitated adults are concerned. A commentary is included on the rules, taking account of the latest practice developments in the court. 

Extensive commentary is also provided on enduring and lasting powers of attorney, and the numerous precedents and forms, to assist the busy practitioner. The narrative is written in an accessible style, providing articulate guidance on the practical application of the law and the court’s approach to issues brought before it.

To quote from the introduction: ‘Legal capacity forms the bedrock of an individual’s ability to act through law; to enter into a contract, to marry, to give or refuse consent to medical treatment, to exercise legal agency in all of its many and diverse forms. It is intimately connected with the personal autonomy of the individual.’ 

This is an essential tool for every practitioner.

Stephen D Sutton is principal of Suttons Solicitors and International Lawyers, London W1