Court of Protection

The Court of Protection deals with matters relating to the property and affairs of people who lack the mental capacity to deal with these themselves.  The person concerned is normally referred to as the "donor".  Under section 55 of the Mental Capacity Act 2005 gives the Court discretion to decide what costs Order, if any, should be made.

The starting point is that the costs should be paid out of the estate of the donor.  The general rule is set out in Rule 156 of the The Court of Protection Rules 2007.  This can appear harsh, as the cost of lawyers arguing over a donor's affairs gets paid by the donor.  However, the starting point is that applications are usually brought by people who are trying to make sure they comply with their duties to the donor.  Where an application is brought in good faith in the best interests of the donor, even if unsuccessful, the costs would normally be paid out of the estate as a result.

Under Rule 159 the Court can depart from the general rule where justified.  When deciding whether to make a different Order the Court has to consider the overall conduct, to what extent any party has succeeded and whether it was appropriate to pursue or contest any particular issue.

Where the costs of proceedings are increased as a result of a party's conduct or they act against the best interests of the donor then the Court will normally Order them to pay the costs caused by this.