Jessica Jarvis

Through 2021 and 2022, the Ministry of Justice (MOJ) sought input on a prospective system that would let families have access to small sums of money that belonged to loved ones who lacked mental capacity. Up to a total amount of £2,500, a new simplified procedure would let withdrawals and payments from cash-based accounts without requiring court authorisation.

Effectively, the proposal created a mini-Court of Protection (COP) following a separate set of processes. Whilst in theory the idea sounded promising, the consultation failed to adequately address the cumbersome process required to amend the Mental Capacity Act 2005 (MCA 2005) and its supporting legislation in order to make the process a reality.

The recommendation to create an almost “COP-light” was a concern for me from the perspective of a COP solicitor. The sector is already severely backlogged and unduly complicated and there seemed no provision for lightening the current load on the court system which, in my mind, would only serve to see the issues of delays and errors to spill-over into the new system.

The MOJ published their response to the public consultation on February 28, 2023. In short, the plan for a new statutory structure is not going to be implemented.

Although there was widespread support amongst those who responded to the consultation for a scheme that addressed the current delays and challenges to obtaining a COP order in these circumstances, there was no consensus on the precise form such a scheme should take, the safeguards it would necessitate, and whether or not it would be simpler than existing processes.

Instead, the government will collaborate with the COP to improve the procedure for acquiring property and affairs deputyships and to educate the public about the requirement to seek legal permission under the MCA 2005 in order to handle the financial affairs of persons lacking mental capacity. The government views operational challenges and a lack of public knowledge as the two main factors preventing third parties from accessing minor payments on behalf of mentally incapacitated persons.

The government is certain that the new digital property and affairs application process for the COP, which was made available to professional court users in January 2023 and to the general public in February 2023, will eliminate many of the present operating obstacles.

Fingers crossed 🤞🏻