Best Practices For Advocates In The Court Of Protection

Like all Court proceedings, proceedings within the Court of Protection will involve a number of Court hearings, if not more than ordinary Court proceedings.

With Court of Protection proceedings concerning a Protected Party, being a vulnerable adult lacking capacity with regards to the specific decision, the parties involved are unable to reach an agreement without the Court’s involvement. The Court’s focus will be placed on the Protected Party and the Court will want to ensure any decision or agreement is made in their best interests.

For these reasons, the Court’s involvement is increased when compared to ordinary Court proceedings, and therefore the number of hearings will likely be higher. It is important to ensure when attending or advocating in these hearings the parties conduct themselves appropriately so as to avoid the Judge being against you from the start.

How to succeed in the Court of Protection

In order to best succeed in the Court of Protection, advocates should adopt a cooperative approach. With the Court focusing on the Protected Party, the Courts prefer to see the parties attempting to work together in order to ensure any final decision made is best for the Protected Party. An aggressive and/or bullish approach during hearings is likely to unsettle/annoy the judge and may suggest that the party is not in fact acting toward the best interests of the Protected Party.

Whilst there will likely be disagreements between the parties, hence the need for the Court’s intervention, advocates should seek to remain neutral where possible. If a party wishes to challenge the other’s position it should be done with evidence in support and by providing alternatives for the Court’s consideration. Any challenge should be made in line with the Protected Party’s best interests.

Proposing alternative approaches in the Court of Protection in the event of a disagreement is fundamental as the Court is only able to decide between the options before them. Any party wishing to challenge an opposing party’s submission must therefore be prepared to provide an alternative as the absence of an alternative will leave the Court with only that option to consider.

Parties should also be mindful that Judges in the Court of Protection often take a hands-on approach and should be prepared for the Judge expressing their own views and potential solutions.

From the above, it will no doubt be clear that, when choosing representation in the Court of Protection, it is essential to instruct a solicitor/barrister that has experience in the Court of Protection.