It is easy to assume that the longer we spend working with the Court of Protection, the more familiar its workings become. The Mental Capacity Act 2005 has been with us for almost two decades now and any novelties or even uncertainties should be glimpsed fleetingly in the rear-view mirror. And yet, the road ahead has twists and turns, bumps and potholes that keep us alert and appreciative that we have kept up our PDF membership. The last few months have kept many practitioners busy still working through the ramifications of Re ACC [2020] EWCOP 9 and Lumb V NHS Humber and North Yorkshire ICB & Anor [2024] EWCOP 57. Other seemingly small procedural issues are also important and make a difference to the speed and safety of any journey we undertake.

Slip rule

There has been uncertainty for some time over whether an apparent mistake in an order is a clerical slip that can be corrected by court staff or a deliberate decision that needs a judge to review and remedy. In practice it is usually obvious whether a mistake is just that and not a judicial determination, but getting it corrected still requires a court form, the ubiquitous COP9 to bring it back into the court process. Sending the order back with a polite letter asking for a correction is not sufficient. However, to avoid flooding the court with COP9 forms, or rather to separate substantive applications from mere spelling error, practitioners are asked to modify form COP9 with words ‘correction request’.

Senior Judge Hilder has issued a helpful Notice (17 June 2025): ‘Correction of orders pursuant to Court of Protection Rules 2017, Rule 5.15: Procedure’. Although this is an informal notice addressed to attendees of the preceding Court User Group it is helpful to have a clear practice guide to assist with good consistent practice.

We have sought further clarification from the Court on how this will work in practice. The Court has confirmed that slip rule amendments will be subject to the same timescales as any other application for reconsideration made under rule 13.4 to the CoP Rules, that is the application must be made within 21 days of service of the order. Additionally, if the Court considers that the request does not fall within the slip rule and cannot be dealt with “administratively” it will be referred to a judge for reconsideration, but it will be put in the queue with any other COP9 applications. In other words, the court will not look kindly on any attempt to use this procedure to amend orders which are clearly outside the scope of the slip rule.

Costs on account

As cases take longer to work their way through the Court and costs build up and then there is further delay in getting costs assessed, there is a major problem for practitioners managing cashflow and profitability. As much as we do not like to talk about profitability in case it disturbs the ethical ideals of our work, Court of Protection practice has to cover its costs and make a profit if a viable service is to be provided in the first place. Practitioners have been helped considerably by being allowed to charge costs on account for general management work (Practice Direction 19B). Until recently, there was no equivalent provision for costs on applications. Following representations made by the PDF, a practice was established where an order determining an application would extend the usual order for assessment and payment of costs by allowing costs on account, subject of course to those costs being assessed and the applicant agreeing to reimburse P in the unlikely event of the interim costs exceeding the assessed costs. On an application to appoint a deputy, the applicant would expect to receive 75% of estimated costs (to reflect the Practice Direction); on more complex applications for gifts and wills, this would often be limited to 60%. In any such case, interim bills on account have been extremely helpful. However, some practitioners have been refused a provision for costs on account, mainly it seems on applications for appointment of a deputy. This has been raised at User Group Meetings (recently on 16 April 2025) where Senior Judge Hilder has made the point that an order for costs on account should not be presumed as a standard provision. The inference is that a request for interim costs needs to be considered on its own terms. While it is right that any order requires a judicial act for it to be effective, this does create more work for all involved. Where the applicant desires a provision for costs on account then this needs to be argued for. Perhaps a distinction can be made between simple cases where costs are modest and longer cases where costs are higher? Feedback would be welcome as to how often interim cost orders are applied for and whether applications are successful or not, and why.

DOLS on tenancies and express authority to deal with property

Another issue raised at recent User Groups has been over tenancies and whether a deputy with a standard authority has a right to enter into or surrender a tenancy. Practitioners have become used to express authority being required to buy or sell property. On 16 April 2025 Senior Judge Hilder confirmed ‘that there has been change over time but for several years now the approach of the court has been to be explicit about authorisations in respect of property sale and tenancies. It will be either expressly included or expressly excluded. The expectations are the same for all deputies, although it is noted that tenancy issues are likely to occur proportionately more in Public Authority deputyships.’ The rationale is that a tenanted property is as much a person’s home as an owned property and a decision to surrender a tenancy may therefore make a person homeless. As with the sale of a property, a surrender of a tenancy is both a property matter and a welfare matter. The drawback of course is that determining this issue involves yet more work for practitioners and judges in explaining why such an order is needed. There are also cases where welfare is not in issue, for instance where P owns investment properties which are tenanted or where P is needs to rent a property.

At the User Group on 9 July 2025 the Senior Judge provided further helpful guidance in highlighting ‘the difference in tenancies in respect of where P lives and tenancies as investment property.’ She further confirmed that ‘the templates for appointment of a professional/solicitor deputy do not standardly include express provision in respect of tenancies that P live in; templates for LA deputies do. This is because of the different types of estates commonly handled by the different types of deputies. In respect of powers of management and investment, see Re ACC para 53.3. It is common practice for professional deputies to be given explicit authority to let or manage investment properties. Evidence in support of an application for such authorities should be filed on form COP24. If the issue relates to P’s home, evidence of where P will live if a tenancy is terminated, and any deprivation of liberty authorisation should be provided.’

COP9s

On the subject of form COP9, some of us continue to hesitate as to when or how often we should use them. The form – or – ‘application notice’ derives its role from Part 10 of the Court of Protection Rules 2017 (COPR) and the accompanying Practice Direction. It is there to request the Court to make a decision or direction which is subordinate to a substantive application, which should follow a logical sequence from the start (issue) to finish (final order). A person applies for the appointment of a deputy or the making of a will (using form COP1 and following Part 9) but circumstances change and a time limit for notification needs to be extended or a party cannot be served. P’s health is precarious and an emergency statutory will needs to be made. A COP9 application is needed to provide the order or direction required. An application should come to an end when a final order is made. However, a COP9 may still be needed where for instance:

P ceases to lack capacity or dies (COPR Part 24 and Practice Direction 24. Even if a deputy was appointed many years previously, P’s recovery has the effect of reviving the original application which now needs to be terminated).

• An application to vary an order made without a hearing (COPR 13.4).
• A final order is made, for example to appoint a deputy, but permission is given to restore the proceedings when further evidence is available concerning the sale of P’s property.

The problem for practitioners is that the COP9 form covers a wide range of circumstances, from a simple request to change a missing detail in an order to an emergency where an application for a statutory will needs to be expedited. In every case, the form is the coversheet or heading that draws the Court’s attention to an ongoing process which needs to be brought out of its place in the queue and acted upon.

Care needs to be taken to address the seemingly simple question at box 2.1: ‘What order or direction are you seeking from the court?’ The limited space in the box should concentrate the applicant’s mind on stating clearly what it is that is wanted. The following box 2.2 allows space for an explanation. If this is not simple or self-evident then further evidence should be provided with a witness statement in form COP24. Box 2.4 then provides space for names and addresses for persons to be served, which confusingly is not the same as the space for persons the applicant serves in form COP1. The form states as follows: ‘Please provide the details of any person who you reasonably believe has an interest which means they ought to be heard by the court in relation to this application notice and who is not already a party to the proceedings.’ A person who is already a party to the application must be served (Practice Direction 10A paragraph 13). If someone else should be served or notified then it is the Court’s role to specify this and direct accordingly, the applicant merely proposes who also should be served. In practice, where there are existing proceedings in play, the applicant serves the COP9 on the other parties as a matter of course, there is no need to wait for the COP9 to be issued before service. Occasionally where there is another person involved, someone not already a party to the proceedings then the COP9 should be issued.

The point to bear in mind that the COP9 form is easily taken for granted as a just another court form. It should not be, as it is an important tool in the practitioner’s toolbox that allows a case that otherwise follows a prescriptive process to adapt to meet the unique circumstances of P.

**Featured in ‘Deputyship Matters’ October 2025 Edition