An Attorney exposed: a word of caution

There are important differences between a Lasting Power of Attorney (LPA) and a Deputyship which mainly concern the levels of supervision and reporting duties that are placed upon the appointed persons.

A Deputy is under a duty to complete an annual report on the anniversary of the order of appointment. The report must provide details of all decisions made, the people the Deputy has had contact with and all monies received and spent throughout the year. It is not unusual for the Office of the Public Guardian (OPG) to call the Deputy on receipt of the report to request additional information. The OPG may also send Visitors to the Deputy periodically to check that everything is in order and decisions are being made in P’s best interests.

By comparison, an Attorney appointed by an LPA is under no duty to report to the OPG on a regular basis and visitors are not sent out regularly to speak to the appointed Attorney.

This varying level of supervision by the OPG may lead people to believe that where an Attorney is appointed, as opposed to a Deputy, P is more vulnerable and at greater risk of financial abuse. However, the OPG are just as thorough in following up any concerns raised about an Attorney’s decision making and taking action where there are questions about whether the Attorney is acting in the best interests of P.

The recent decision in Re DP: Public Guardian v John Marney (2014) EWCOP 7, (2014) MHLO 69 demonstrates the OPG’s diligence in following up and acting upon allegations of financial abuse. This case is significant in that the Senior Judge ‘named and shamed’ the Attorney and argued that “Nothing JM has said, or which could sensibly be put forward on his behalf, provides any reason why, looked at from his perspective, he should be spared the consequences of his misbehaviour.”

This is a bold decision by the Senior Judge and demonstrates that not financial abuse will not be tolerated. Regardless of whether someone has been appointed as an Attorney or a Deputy, the Court will not hold back in making such misconduct known to the public. If you would like further advice about putting in place a Power of Attorney, please contact Caroline Featherby or a member of our Elderly Care team.

Guardianship of the property of missing persons

This consultation on the Guardianship of the property and affairs of missing persons caught my eye last week.

What happens to the finances of a missing person? According to the charity Missing People approximately 110,000 adults go missing each year. What happens to their bank accounts, mortgages etc? How do their relatives manage their finances if they do not have access to the missing person’s accounts? Difficulties will arise when bills cannot be paid, such as a jointly held mortgage; or when direct debit payments cannot be cancelled, perhaps for magazine subscriptions or health care, eroding the assets of the person who has gone missing.

This consultation seeks to remedy some of the problems that arise when someone goes missing. Proposals include the appointment of a guardian who will act in the financial best interests of the missing person.

The problems highlighted in the consultation are similar to those experienced when someone loses capacity and has not put a power of attorney in place. Family members will find that payments continue to be made from accounts unchecked and that the assets of the person who lacks capacity are not being managed in the most appropriate manner. As a private client lawyer, I often work with people who have lost capacity to manage their affairs. In the best case scenario (if such a thing exists) they have put in place a power of attorney. If they have not, then often an application needs to be made to the Court of Protection to appoint a deputy. This can be a family member, or sometimes a court appointed panel deputy will be necessary – like my colleague Anthony Fairweather.

When someone loses capacity, their affairs need to be managed for them – operating bank accounts, paying bills etc. This is not an easy task, but it does mean that bills will continue to be paid and life can continue. I often liken powers of attorney to house insurance – you hope your house doesn’t burn down, but you are very glad to have your insurance in place if it does. A little forward planning can save an awful lot of anxiety for families trying to make decisions in the most difficult of circumstances.

The consultation seeks to assist those whose loved ones go missing and its aims are to be applauded. I welcome the proposals as they raise awareness of the problems that are faced by families every day.

For advice about managing the affairs of someone who lacks capacity, please contact me or a member of our Court of Protection team.

Care Fees Funding: When is your home really your home?

Many people fear losing their family home to pay for care fees in later life, but in some circumstances the value of a property will be disregarded ie it will not be taken into account when assessing someone’s ability to contribute towards the cost of care.

When might my home be disregarded?

Under the current rules anyone with assets in excess of £23,250 will be required to pay for their care in full. Only when assets fall below £14,250 will those assets be disregarded in full. Individuals with assets between £14,250 and £23,250 are assessed as to how much they should contribute towards their care fees. The value of a resident’s permanent home is disregarded in making that assessment:

  • during the resident’s first 12 weeks in care;
  • if the house was acquired for occupation by a former partner of the resident; or
  • if the house is occupied by the resident’s partner, a relative who is aged over 60 or incapacitated or a child “as their home.”

Mrs Walford’s case

Earlier this year the High Court considered this issue for the first time and threw some light on how the relevant legislation in this area should be interpreted.

Mrs Walford was a widow with one child, Glen Walford. Ms Walford, who was over 60, is an acclaimed theatre director who works all over the world. Ms Walford had lived elsewhere for periods of time but because of her work commitments she had never owned any property, always renting and regarding the places in which she resided as temporary accommodation. Ms Walford had a bedroom, downstairs office, caravan and storage shed at her mother’s house and kept most of her belongings there. She had also paid the cost of maintaining the house and garden since her father’s death some years before.

Worcestershire County Council, which carried out the financial assessment, considered Ms Walford’s case and in November 2011 and decided to disregard the property. But the Council then reversed the decision on review the following March stating that, in their view, her mother’s house was more like a holiday home for Ms Walford and was not her home within the meaning of the legislation. Ms Walford appealed.

The High Court decision

The Court decided:

  • whether a property is a home depends on the degree and nature of occupation. As it is possible to have more than one home, for these purposes “home” should mean someone’s only home or main home if they have more than one home.
  • the Council was entitled to take into account where a person was registered to vote and where they paid Council Tax.
  • the Council had been wrong to use a test of actual occupation and/or permanent residence and to concentrate on the position as it stood when Mrs Walford entered residential care. Whether the property should be disregarded should be reconsidered whenever there was a change in circumstances.

The judge quashed the Council’s decision, ordering them to reconsider the case and decide the issue using the correct criteria. Worcestershire County Council are believed to be appealing and there is no indication at present as to whether Ms Walford has succeeded in having the property disregarded.

The practical effects of this case

As a result of this case we now know that:

  • for a property to be disregarded because it is a resident’s relative’s home, it does not have to be the relative’s only home, but it does need to be their main home.
  • in making that determination a Council is entitled to take into account where the relative is registered to vote and pays Council tax.
  • the Council should not determine the question by reference to the actual occupation or permanent residence of the relative.
  • if there is a change of circumstances the question of the property disregard should be reconsidered.
  • if other Councils have applied the disregard rule on the same basis as Worcestershire then it is possible that residents or relatives will now be able to appeal previous decisions.

For more information, please contact Heledd Wyn on 0845 209 1495 or email heledd.wyn@clarkewillmott.com.

Court of Protection: Anonymity v transparency

In January this year Sir James Munby, President of the Court of Protection, issued Practice Guidance entitled ‘Transparency in the Court of Protection: Publication of Judgments’. Sir James Munby is a staunch supporter of openness and transparency in the Court, believing that the publication of judgments should bring a greater understanding of the workings of the court, and public accountability of the judges who make such important decisions on behalf of some of our most vulnerable citizens.

As a result of the guidance, many more Court of Protection cases have been reported in the media and full judgments of decisions can be accessed by the public using websites such as Bailii. The guidance is clear that the anonymity of P and family members must be protected and public authorities and experts should be named unless there are compelling reasons to do otherwise. This protects and complies with P’s and P’s family members’ HRA Article 8 rights to privacy.

Importantly, however, although the names of P and family members may remain undisclosed, details of P’s behaviour and his or her circumstances are not, since this provides the background for the judge’s decision. Aside from the common disabilities of double incontinence and negligent personal care, the behaviours of those with learning disability or dementia can include challenging, violent and uninhibited sexualised behaviour. If P had the capacity to decide whether these details should be disclosed, they would almost certainly want them to remain private. No doubt P’s close family and friends would also like to preserve the dignity of their loved one by keeping intimate details private. The question arises whether such ‘transparency’ is for P’s benefit or for the judge’s benefit to provide the reasons for his or her decision?

Perhaps more alarming was a recent case between The Press Association and the Newcastle Upon Tyne Foundation Trust. The case concerned the medical treatment and care of a Jehovah’s Witness and considered whether P’s anonymity should be preserved after death and whether the confidentiality of information gathered during P’s lifetime for the litigation should continue after death. The Honourable Mr Justice Peter Jackson ruled that the Court did have powers to preserve P’s anonymity and the continued confidentiality of P’s personal information, but in this case he decided that ‘the balance falls in favour of lifting that anonymity’.

The Honourable Mr Justice Jackson cites in his judgment the case of Re Meek [2014] COP1, and quotes the words HH Judge Hodge QC that ‘the court must consider the potential effect on P’s relatives and other family members, on clinicians treating P, and on persons caring for P, if they knew on P’s death their anonymity would be lost.’ In my view this is a very important consideration. A huge amount of intimate and private information about P and family members is provided to the court during proceedings which can take months and occasionally years to be concluded. Family members who are parties to proceedings are often not legally represented, and their evidence or information provided may not have been tested. Will this all be allowed into the public domain if anonymity is lifted after death?

However, I loved the fact that in the recent case of Westminster City Council v Sykes (by her litigation friend RP) [2014] ewhc b9 (cop), District Judge Eldergill named P, Manuela Sykes; but he named her because he believed she would have wanted that, as a public figure and a campaigner. Manuela Sykes campaigned for the dispossessed, the homeless and the abandoned; I wonder what she would think about naming P without P’s consent and bringing intimate details of P’s life and person into the public domain, before or after P’s death, for the sake of transparency and accountability?

For further information about mental capacity or health and social care law, please contact Joanna Burton.

Statutory Safeguards: Protection or Control? Swan Advocacy Annual Conference 10 June 2014

Jess Flanagan and Jo Burton were invited to speak at the Swan Advocacy Annual Conference on 10 June 2014. The conference was a lively and interesting event attended by advocates, social workers, lawyers and representatives from Wiltshire Council and other local authorities.

The keynote speaker was Graham Enderby, carer of HL in the Bournewood case. Graham was an incredibly charismatic speaker and it was clear that his resilience, fortitude and total commitment to HL enabled them to fight such a long battle for HL. It was very humbling for the rest of us. All of the speakers presented interesting topics to a high standard but the person who held most resonance for me was Noelle Blackman, who spoke to us about ‘Indifference’. At the core of her talk was the tragedy of ‘Laughing Boy’, Connor Sparrowhawk and his mother’s fight for an inquest into his death which occurred while he was detained in hospital under the Mental Health Act 1983.

The full title of the conference was Statutory Safeguards: Protection or Control? ‘The role of independent advocacy in finding the balance’. Perhaps the key role of the independent advocate is the empowerment of P. This could mean empowering P to be part of the process, or helping to put steps and measures in place to ensure that P’s wishes, feelings and needs are recognised, and that they are acknowledged by practical outcomes, instead of being treated with indifference. This empowerment can result in protection rather than control, which is often the outcome of indifference.

A big thank you from Jess and Jo to Swan Advocacy for inviting us to speak and to attend the conference. It was a most enjoyable and interesting day and it has inspired the title of our own forthcoming conference in Bristol on 17 October 2014: “Mental Capacity Act 2005: Promoting Autonomy and Empowerment?”

For further information about mental capacity or health and social care law, please contact Joanna Burton.

Court of Protection: campaign for LB

In July 2013 I was referred to a blog that made my heart sink. On Sara’s blog: “my daft life” I learned that Sara’s son, Connor Sparrowhawk, a fit and healthy young man, had died while an inpatient in the care of an assessment unit for individuals with learning disabilities and mental health needs.

Like most people, I felt terribly sad and shocked for Sara and her family. I started to follow Sara on twitter and learned that Connor had died due to the indifference of a system that we would expect to protect and care for those of us amongst us who have learning disabilities when they can’t protect themselves and for whatever reason need support additional to that provided by their family. Connor’s story sounded similar to many of the cases I deal with and the cases you read about in Court of Protection judgments. But the way it ended was not the same.

I confidently told a client recently that I had never ‘lost’ a challenge to a placement authorised by the Deprivation of Liberty Safeguards. Later, I was proud to see him moved to a placement closer to his home and we are now very close to ‘proving’ that he has capacity to make up his own mind about where he lives and receives care. The CW team works hard to empower adults to make their own decisions, but if the evidence points to them really not having the requisite decision making capacity to do so, we do everything we can to argue them to a position closest to what they want.

Connor, however, missed the chance to go back to his family.

Connor was a generally fit and healthy young man, had a learning disability, displayed some autistic behaviours and had epilepsy. On 19 March 2013 he was admitted to Slade House and was sectioned under S2 of the Mental Health Act. This meant he was not able to leave the unit and he was supposed to be checked by staff every ten minutes to make sure he was well. He later became an informal patient and a new care plan was put in place. On the morning of 4 July 2013 Connor was found under water in his bath and later died.

An independent investigation concluded that Connor’s death was preventable. Findings in the report show that Connor’s epilepsy was not properly assessed or managed. No epilepsy plan was put in place and there was no evidence that a review of Connor’s health, including a physical inspection, took place when he joined the unit. In addition, supervision at bath times was found to be inadequate and the unit failed to properly engage with Connor.

The Care Quality Commission inspected the Unit in November 2013. The inspection report was highly critical of the Unit. CQC inspected ten essential standards of quality and safety: it found that none of these standards had been met and six of the failings had a major impact on the individuals.

The circumstances surrounding Connor’s death have been widely reported through the media; the unit at Slade House has now closed; some members of staff were suspended and some became subject to disciplinary investigations. But despite the anger at what happened, bringing about any real change to the service has been a struggle.

It is over a year since Connor died, but #107days – the campaign begun by Sara and her supporters – continues to inspire action and they are determined to “harness the energy, support and outrage that has emerged in response to LB’s death and ensure that lasting changes and improvements are made.”

As a solicitor working alongside the mental health services I was aware of Sara’s campaign, but I admit that it took a while before I became fully engaged in the social media storm that was spreading. Since the beginning of June, however, most of the organised events that I have attended have highlighted Sara’s campaign, exposing the indifference of services to academics, counsellors and my colleagues in the legal profession. Joanna Burton will be writing about some of those events in  the next edition of our Court of Protection newsletter, but for me they have acted as a catalyst – it seems to me that at last we are taking notice of #JusticeforLB and determined to do something.

The next step will make the most difference and I hope to be able to share more information about the #LBBill in the next edition of our newsletter – coming soon.

Dementia: reports of a possible link to vitamin D deficiency

We all love the sunshine. At the first hint of the sun, you will see people out in parks, on the beach and generally looking much more cheerful.

However, it would appear that this may not be the only benefit to a lovely summer’s day. A new study led by Dr David Llewellyn at the University of Exeter Medical School found that vitamin D deficiency is associated with a substantially increased risk of dementia. Just a few minutes of daily sunshine at the height of summer (a little more in winter) is enough to boost your vitamin D levels, but the researchers are not quite ready to say that sunlight or vitamin D supplements will reduce the risk of dementia.

Dementia is an extremely distressing illness, both for the sufferer and their families so it is very good news to hear about research such as this, which can hopefully help with our understanding of the illness and eventually better treatment – who knows, perhaps even a cure.

The effects of an illness such as dementia can be extremely difficult to cope with, especially when issues with care homes, benefits and finances come to the fore. It may be that the person suffering from dementia has always managed their finances, but now requires help.

At Clarke Willmott, we offer a full range of support for individuals who are finding these problems bewildering – from powers of attorney, to care home funding and assistance with the management of an individual’s financial affairs. For further information about how we can help, please contact Heledd Wynn or a member of our elderly care team.

Providing Legal Aid for Community Care matters

From 1 August 2014, Clarke Willmott will be in a position to offer our clients legally aided advice in respect of Community Care matters. From challenging Social Services and Continuing Healthcare assessments, to advising on applications for Judicial Review and in the Court of Protection, our team may be able to assist you. Until now, we have only been able to provide advice when a case is already in the Court of Protection, or if a hearing in the Court of Protection will be required.

Our contract with the Legal Aid Agency will enable us to advise eligible individuals and provide support for them at best interests meetings. These may take place way before a court hearing is necessary and can provide assistance in setting out views and evidence, to try to avoid the need for any court application.

Jess Flanagan, an Associate in the Clarke Willmott Court of Protection team says: ‘Everyone in the team is delighted that we can now provide legally aided support to the public, especially at a time when the austerity measures continue to bite in the Social Care world. With access to legal advice when an issue arises, as opposed to when the case is before the court, many clients will be able to avoid the lengthy and sometimes exhausting court process.’

To be eligible for legal aid an individual must have gross income of less that £2657, disposable income of less than £733 per month (combined with your partner if you are living with them) and capital of less than £8,000. It is a complicated and rigorous assessment, so if you are unsure, please call Jess Flanagan on 0845 209 1160.

Elderly care: Introducing Heledd Wyn

My name is Heledd Wyn and I have just joined Clarke Willmott as an associate in the private capital team.  I will be working with Anthony and Jess to develop this key area and I am really excited about the road ahead.

I am particularly looking forward to contributing to the Elderly Care and Court of Protection blog and I thought I would take this opportunity to introduce myself.

While training to be a solicitor I was given the opportunity to  develop my interest in elder client law through a mixture of will drafting, powers of attorney and Court of Protection work – including my first statutory will.  This was all before the Mental Capacity Act 2005 so I was really interested when the new law came into effect as I felt that it really tackled some of the difficult issues facing people who may lack capacity to make certain decisions.  The Act is not of course perfect, but it certainly started to bring capacity into the public domain. There are other changes on the horizon that will have an impact – watch this space for news on the Care Act 2014.

We are all aware of the ‘baby boomer’ generation and the ‘silver surfers’  and know that with an ageing population,  issues surrounding capacity are going to become more of a concern for individuals and their families, especially with illnesses such as Alzheimer’s and dementia increasingly affecting loved ones.

I am keen to raise awareness of the assistance that we, as lawyers, can provide.  For example, we can help prepare for a number of eventualities, perhaps by updating your will or drawing up a power of attorney.  We can review care home funding decisions, including who should be paying for the care.  We can also make applications to the Court of Protection, perhaps to appoint a Deputy for someone who has lost capacity or to apply for authority to make gifts.

There are many ways in which we may be able to help, but if you are not sure what we can do for you or your family, just ask.  The right advice can often put an end to a lot of worrying, so pick up the phone or drop me a line – no question is inappropriate.

You can contact me by telephone on 0845 209 1495 or by email at heledd.wyn@clarkewillmott.com

Questions for the Minister for Courts and Legal Aid

In this blog I frequently refer to the cuts and changes to the Legal Aid system that are making it increasingly difficult for some of the most vulnerable people  to resolve issues that would test many adults with full capacity.   It would be impossible for the Minister for Courts and Legal Aid to follow all of the cases that go through the Court of Protection, but does he understand how the changes are affecting one group of people who need to be represented?  If I had the opportunity, here is what I would like to ask him:

Are you aware of the recent Supreme Court judgment of Cheshire West and Chester v P, where Baroness Hale set out the ‘acid test’ for determining whether an incapacitated adult receiving care is ‘deprived of his or her liberty?’

As a result of that decision, there has been a tenfold increase in applications under the statutory scheme which authorises such deprivations.  From just over 10,000 in 2012/13 the number of applications is set to rise to just under 100,000 in 2014/2015.

To be compliant with Article 5 of the European Convention on Human Rights there is a right to challenge the deprivation of liberty in the Court of Protection. Non means tested legal aid is available to the person deprived of his liberty and his representative, but the statutory scheme only applies to those in care homes and hospitals.

If, like many young adults with learning disabilities or brain injury, the individual receives care and support at home, they do not benefit from non means tested legal aid if they want to challenge their care and living arrangements that now may be depriving them of their liberty following the Cheshire West judgment.

Why is this? What is the material difference between these two groups of people so that just being present in a care home or hospital gives more people the chance to exercise their A5(4) right to a speedy review of their ‘detention’ with the benefit of legal advice and representation?

A vulnerable adult being cared for at home due to their disabilities and needs will be under the continuous control and supervision of their carers and, since they are ‘not free to leave’,  they are just as likely to be deprived of their liberty.

Because there is no statutory equivalent for these individuals to challenge this, their circumstances must be considered by the Court of Protection. If the deprivation of liberty is found to be proportionate and in their best interests, it will be authorised by Order and reviewed regularly.

In my view the individual concerned should, if he or she wishes, be involved in the court proceedings, but they do not benefit from non means tested legal aid.  If they don’t meet the stringent means assessment for legal aid, or have at least £10,000 available to foot the bill, they are unlikely to have their interests properly represented before the court (see my article in respect of the cuts to legal aid back in February 2014). Mr Justice Munby is likely to say something about whether the individual should be involved in the proceedings, in what circumstances and how, but it still puts those who are in their own homes, or supported living environments at a disadvantage over those who are in hospitals and care homes.

In addition, and because of the mounting numbers of applications (212 in 13/14 but predicted by Association of Directors of Adult Social Services to be 28,500 in 2014/15 and 31,500 the following year), the Court may only be in a position to rubber stamp applications unless someone pushes on their behalf to look more closely.

Why did the Government reject this in its response to the House of Lords Select Committee report on the Mental Capacity Act 2005? which was:

‘Recommendation 32: We note the pressure on legal aid, but we are concerned by the inconsistent provision of non-means tested legal aid for cases concerning a deprivation of liberty, including those where there is a dispute over whether a deprivation is taking place. We cannot see a justification for such inconsistency and we recommend that the gap in protection that it creates be remedied as a matter of urgency. ‘

Their response, in Paragraph 9.14, was that ‘we do not agree that proceedings which broadly relate to the deprivation of liberty should by themselves not be subject to the means test…’ It confirms that non means tested legal aid remains in place for those making section 21A MCA applications (those who are in care homes or hospitals) but do not believe that the ‘other kinds of proceedings described in the Committee’s report’ and I’m not really quite sure why.

There is no explanation in the response paper – but we would all welcome one.

A great deal of media coverage has recently highlighted the need for defendants in complicated cases, such as fraud, to be represented by advisers who have the time and specialist expertise.  The regular response is that legal aid is there for those who need it most.

Here we are talking about really vulnerable adults who feel like prisoners in their own home at the hands of the state.  Their situation needs to be addressed and legal representation can make a huge difference to the eventual outcome for these individuals.

If you would like to discuss any issues regarding Welfare proceedings please contact me, or a member of the Court of Protection team.