The Court of Protection has jurisdiction to decide on cases where a Protected Party (P) lacks the capacity to make the decision in question for themselves.
The Court of Protection is required to act in the best interests of the Protected Party and is unable to make decisions if it is found that the Protected Party retains sufficient capacity. Given the nature of Court of Protection proceedings, the cases before them are often significant and life changing, not only for the Protected Party but also for those involved with the Protected Party’s life.
There are 2 significant matters that the Court of Protection will consider, one being the Protected Party’s property and Financial affairs and/or their Health and Welfare. These 2 areas are wide enough to encompass the Protected Party’s entire life and decisions can vary from the purchase of property, the administration of medical treatment, or even the living arrangements for the Protected Party.
When making such orders, the Court of Protection will need to ensure appropriate measures are in place to allow the decision made can be enacted upon. For example, if the Court of Protection finds it is in the Protected Party’s best interests to reside in a specific care home, they will need to be satisfied there are sufficient placements and that the Protected Party is able to reside there.
Similarly, if the Court of Protection finds it is in the Protected Party’s best interests to remain/return home, they will need to ensure the home is suitable for the Protected Party’s occupation and that there shall be no interference. Where there may be interference, the Court of Protection may take additional measures to ensure the decision made in the Protected Party’s best interest is complied with.
Background
In the recent case of KL (by her Litigation Friend, Grace Whitrick) v Auckland City Council and another, the Court of Protection took measures to evict another from the Protected Party’s home and in their non-compliance, imposed an imprisonment sentence of 12 months.
This case concerned KL, a lady of 92 years of age. In previous proceedings, it was found to be in KL’s best interest that she return home, and given her age; time was of the essence as any delay would be detrimental to her. At the time of making that order, KL’s property was occupied by Mr Adamou. In order to meet KL’s best interests, Mr Adamou was ordered to vacate the property but he refused to do so. Eventually, KL’s Litigation Friend was forced to seek committal proceedings against Mr Adamou following his breach of the Order.
Committal proceedings were issued in the Court of Protection Mr Adamou failed to attend the hearing. The Court of Protection noted that Mr Adamou had sufficient notice of the hearing and that he had made his position clear to both the other parties and the Court. Mr Adamou felt the property was his home and he refused to vacate under any circumstances. The Court of Protection was able to proceed in the absence of Mr Adamou and found that he had breached the Order. A later hearing was set to consider the appropriate sentence following a breach of the Order.
Again, Mr Adamou failed to attend the sentencing hearing and the Court of Protection was able to conclude that the hearing should proceed without him. In considering the appropriate sentence, with a view to securing KL’s best interests, the Court sentenced Mr Adamou to 12 months imprisonment. This was necessary for the best interests of KL as this provided sufficient time for KL to be returned to the property without the interference of Mr Adamou. Further, it was believed to be the only course of action available as Mr Adamou was unlikely to vacate the property in the absence of imprisonment.
Comment
This case demonstrates the Court of Protection making orders against others as necessary to protect a protected party’s best interests.
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