The Role Of Court Of Protection Visitors

Court of Protection visitors are generally divided into two categories – Special Visitors (who are qualified to assess mental capacity) and General Visitors (who are not so qualified but have experience of dealing with people who lack capacity). If you are ever involved in any Court of Protection proceedings, you will most likely encounter a Special Visitor or General Visitor at some stage. Part of the role of a Court of Protection Visitor is to conduct capacity assessments, but they can also be asked to investigate and advise the Court on certain issues.

The Court of Protection has jurisdiction in any case where a protected party is adjudged to lack the capacity to make decisions for themselves. The extent to which that individual lacks capacity is not always clear, however, and Court of Protection cases do have a habit of evolving from the initial question (i.e. who should be deputy/is it safe for the protected party to continue to live in their own home) into a much larger web of issues and in each case, a protected party’s capacity to make decisions about that issue has to be assessed before the Court can intervene. Usually, a Court of Protection visitor will be commissioned to meet with a protected party and assess their capacity first.

Sometimes, however, the visitor’s role goes beyond mere capacity assessments. There are for example cases in which a protected party may lack capacity but is not unaware of what is happening in the case, and has some ability still to express his/her views. This is not uncommon in early Alzheimer’s sufferers and children who have sustained brain injuries. A protected party’s views can be elicited by the Court of Protection Visitor, and whilst they are not determinative (a protected party may not necessarily know what is in his/her best interests), they will usually be a factor in a Judge’s decision.

What are the roles of Special Visitors and General Visitors in the Court of Protection?

• Special Visitors are qualified to assess capacity and advise on some medical issues. Examples of this in the Court of Protection include advising on the effect of a change of environment for a dementia sufferer (in residence disputes), the care needs a stroke victim is likely to have or the psychological effects of a vulnerable adult having contact with a close relative.
• General Visitors do not usually become involved in medical questions but have some experience of dealing with people who do not have the capacity, and they are more often than not instructed in property and financial affairs proceedings. A classic example involves an investigation into the actions of an attorney or deputy, and the Office of the Public Guardian (the body which supervises attorneys and deputies) will commission the General Visitor to visit the protected party, speak with them, assess their capacity if needed and investigate matters “on the ground”.

It is usually mandatory for Court of Protection Visitors to personally visit a protected party. This, however, has not been possible for many protected parties during the pandemic. Protected parties in care homes and nursing homes have not been allowed to have visitors for much of the last 18 months, due to the risk of Covid-19 infections spreading amongst residents and Court of Protection Visitors have had to adapt their processes – for example, meeting protected parties via online portals or speaking with them and their carers by telephone and/or by e-mail. This has resulted in some advice becoming – inevitably – a little more generic than would otherwise be the case but the degree of expertise a Court of Protection Visitor can bring to the table will still be of assistance to the Court when making difficult decisions for protected parties.