Skipping a generation: an everyday story of country folk’s Wills

Listeners to The Archers BBC radio serial will have recently heard Peggy Woolley’s heartrending speech to her unconscious son Tony in which Peggy bitterly regrets having left Tony out of her Will. Happily Peggy still has chance to put this right, if Tony recovers, as of course a Will can be changed by a testator at any time provided that its maker has capacity to do so. But was Peggy wrong to leave  Tony out of her Will, and was she right to tell her family in advance about the contents of her Will?

Peggy’s Will

Earlier this year, over afternoon tea, Peggy announced the contents of her Will to her assembled family. For those not familiar with the programme, Peggy has three children, Jennifer, Lilian and Tony and one step-daughter, Hazel. Peggy told her children that she felt that her daughters were able to provide for their families but that Tony had not managed to do so as well and she therefore intended to leave her estate between Tony’s children, Helen and Tom.

Fans of The Archers have speculated about Peggy’s motives for drawing up her Will in this way (were the sins of Tony’s alcoholic father, Jack Archer, being imputed to his son?) but from an objective point of view was Peggy doing the right thing?

Generation skipping

Peggy’s Will favours two of her grandchildren over any of her children. If Inheritance tax (IHT) is an issue then this may well be a sensible way of reducing tax. If, for example, Tony was likely to be liable to pay IHT on his own assets then inheriting part of Peggy’s estate would simply increase the IHT payable on his own estate and reduce the amount ultimately passing to Helen and Tom. Leaving the assets to Helen and Tom direct bypasses this problem.

If IHT is not a concern and Peggy was worried about how Tony might deal with any assets left to him, could Peggy have dealt with this in her Will without disinheriting Tony altogether? Peggy could perhaps have considered creating a trust in her Will, either giving Tony the income when he was alive and leaving the capital to Helen and Tom after Tony’s death; or by creating a discretionary trust so that Peggy’s executors would have ongoing discretion over the assets in the estate and who should benefit.

The first option would ensure that the capital of Peggy’s estate would be protected and Tony might not have felt overlooked; the second option would have incorporated a great degree of flexibility into the Will. Peggy could have drawn up a Letter of Wishes stating how she would like any trust powers to be exercised which would have had moral force over her trustees, even though it would not be legally binding.

Could any of the children challenge Peggy’s Will?

Under English law Peggy enjoys complete freedom to make her Will in any way that she thinks fit.  If certain specified persons do not receive anything under the Will, or feel that they have not received sufficient, then they can bring a claim against the estate for reasonable financial provision.

Children are one of the specified classes that can bring such a claim. Historically, claims by adult children have tended not to be successful unless an adult child had a particular need, such as a disability, but in recent years the courts appear to be regarding such claims more favourably. Whether or not they would be successful, Jennifer, Lilian and Tony would have the ability to bring a claim, but doing so would both delay the administration of the estate, and increase the costs involved.

Is advance disclosure a good thing?

In our view Peggy was right to tell her children about her plans. However distressed they may or may not feel now, the situation would have been far more emotional if they had discovered the position in the aftermath of Peggy’s death. At least with their mother still alive they have the ability to raise any concerns they might have and to understand her motives for drawing up in her Will in this way.

And what about Tony?

Peggy’s declaration of regret at Tony’s bedside followed his serious injury from an incident with a bull and he is presently incapacitated. Let’s hope Tony has a Lasting Power of Attorney in place so the farm can still be run…but that’s another story.

For further information about making a Will or Power of Attorney, please contact Heledd Wyn.

End of life care and the Deprivation of Liberty Safeguards

Regular readers of this blog will know that we have written extensively about recent developments concerning DoLS: the Safeguards which protect individuals detained in a care home or hospital for the purpose of giving them care and treatment, but who lack the capacity to consent to that treatment or detention. In March 2014, the Supreme Court clarified that an individual without capacity is deprived of their liberty in circumstances where they are under the ‘continuous supervision and control [of their carers] and are not free to leave.’

Death in DoLS – Chief Coroner’s Guidance

There has been an unprecedented increase in the number of individuals whose detention falls within that definition of ‘deprivation of liberty’, so it is understandable that more departments are supporting someone subject to a DoLs authorisation and require guidance about the services they provide.

One of the issues currently being discussed is what happens when someone dies while they are the subject of a DoLS authorisation. How and when should inquests be undertaken in those circumstances and how should DoLS be used in a hospice environment?

Some of these questions have been answered by the Chief Coroner in ‘Guidance No. 16: Deprivation of Liberty Safeguards (DoLS).’ Found here.

The Guidance sets out the basic principles and the processes involved in authorising a DoL, but importantly, it clarifies that coroners are not there to determine the validity of a DoLS authorisation.

There was already a statutory requirement for a coroner to commence an investigation into a person’s death where the coroner had reason to suspect that ‘the deceased died while in custody or otherwise in state detention’, but the Chief Coroner provides guidance for coroners in deciding whether there should be an investigation into the death of a person subject to a DOL.

The guidance from the Chief Coroner is clear:

54. …In short once the relevant conditions are satisfied, the person is detained by operation of the law. This appears to be consistent with ‘compulsorily detained’ in s48(2) of the 2009 Act.

55. This view suggests that those subject to DoLS are subject in plain language to the restrictions of state detention. They are detained compulsorily under the statutory framework of the state. There should therefore be a coroner’s investigation (including inquest: section 6) in all cases.

What type of investigation?

With an increase in DoLS in care home and hospitals, I wonder whether the deaths of those individuals are more likely to be investigated by a Coroner? Where the answer is yes, the format that the investigation might take is important.

Although all deaths in DoLS will lead to an inquest, the guidance suggests that most deaths in DoLS will be investigated by a Coroner on the papers and only those who die in circumstances that are ‘controversial’ might benefit from an inquest with witnesses and submissions.

Only the deaths that are violent or unnatural, or where the cause of death is unknown, will be the subject of a jury inquest.

On Article 2 (right to life) inquests the guidance is brief, but says that the procedural duty to carry out such an inquest would arguably arise where the death is not from natural causes, or if the DoLS detention may be a relevant factor in the cause of death.

Many deaths in homes or hospitals cannot be viewed as ‘natural.’ Some deaths may appear to be natural, but are actually the result of a failure by the state to take measures within the scope of its powers to avoid a death where they knew or ought to have known that there was a real or immediate risk to the life of the deceased. As the volume of cases will inevitably increase, who will spot these deaths?

The decision of Cheshire West has already led to an increase in paperwork for Local Authorities, health authorities, the Court of Protection and now for Coroners. If these organisations become so overwhelmed with paperwork, will they notice the cases that need proper scrutiny? Further, won’t all of these paper reviews divert necessary resources from those cases that really do go wrong and would benefit from the detailed, independent scrutiny of a jury?

DoLS in hospices

The nature of the service provided in hospices means that the instances of deaths will be huge, increasing further the impact on the work of a coroner.

Why might this be an issue? When would someone receiving end of life care need to be made the subject of a DoLS authorisation?

On a strict application of the MCA 2005, and by analogy to the Court of Protection’s treatment of individuals with Persistent Vegetative State and Minimally Conscious State in relation to incapacity, when an individual is unconscious there is arguably an impairment or disturbance of the functioning of the mind or brain (s2 MCA 2005). The diagnostic test is fulfilled and when looking at the functional test, this is fulfilled because the patient is unconscious and they are unable to communicate a decision about where they want to live and receive care. It is likely that the care they are receiving and the environment they are receiving it in, is overwhelmingly in their best interests, necessary and proportionate and as such, meets the key requirements for a DoL needing authorisation.

Since there is limited state involvement in a hospice, will a DoL be attributable to the state and require authorisation?

Current legislation ensures that a private entity, if carrying out functions of the state (ie providing care funded by the state), will be caught by the DOLS and will need to obtain authorisation for any deprivation of liberty. Section 64(6) of the MCA 2005 confirms that it does not matter whether a person is deprived of their liberty by a public authority or not for the scheme to apply. It is therefore safer for a hospice as Managing Authority to ensure that the detention is authorised.

It has been suggested that if a patient goes into a hospice by choice (which is usually the case), they could sign a form to confirm that they give their consent and this might somehow avoid the later implication of a DOLS authorisation once capacity has been lost. I have concerns with that on a legal basis, as capacity is time and decision specific. There is no legal mechanism where a DoLS authorisation can be opted out of. It is a framework to authorise existing restrictions on liberty which amount to a DOL, and there is no ‘Advance Decision’ alternative to deal with this.

Is this another issue that might require legislation?

The Supreme Court decision has already led to an escalation of assessments and increased pressure on already depleted resources in Local Authorities and courts. Without a solution to DoLS in hospices this could be set to rise even higher, but concerns have been raised by individuals working with families in hospices as they really do not want to be troubled by Best Interests Assessors and DoLS documentation at a time when they want to be spending time with dying family members. This is an incredibly pertinent point.

It doesn’t always make sense to insist on the use of a framework which is there to support and protect the human rights of those who are living, for those who have gone to a peaceful and calm place to die. Does this mean picking and choosing when fundamental human rights should apply, and to whom? A tricky balance to achieve.

To discuss any of these issues please contact Jess Flanagan or a member of our Court of Protection team.

Court of Protection: BRACE – helping to beat dementia

One of our roles in the Court of Protection team is to help people plan for the future. When someone has a debilitating illness, such as Alzheimer’s or another form of dementia, this can be distressing for those struggling with the illness, as well as the family members who deal with the consequences.

We can assist by organising powers of attorney, or sometimes applications to the Court of Protection for a Deputy to be appointed. We can also help with thorny issues such as care home funding. These steps can all alleviate the day to day worries experienced by those with the illness and their carers, but we cannot address the very real problem of dementia as an illness.

It was therefore with great interest that my colleague Caroline Featherby and I met Mark Poarch from BRACE the other day. BRACE is a charity based in Bristol which funds research into Alzheimer’s disease and other forms of dementia and they aim to assist medical researchers understand the causes of dementia and ‘ultimately… to help science beat dementia’. Mark told us about the work carried out by BRACE and how they are keen to raise awareness of the illness and the attempts being made to find a cure. He also talked about the South West ‘brain bank‘: without the donation of brains for research, there could be no work undertaken to look for a cure. Slightly morbid, but vital.

Talking to Mark, it became clear that there are many of us fighting the same battle, but we are just using different tools. At Clarke Willmott our aim is to assist individuals with the practicalities of coping following a diagnosis. The researchers supported by BRACE – are trying to provide a cure for dementia, or at the very least a greater understanding of the causes of dementia and how it can de diagnosed earlier.

Either way – the effects of dementia can be debilitating and anything that can be done to alleviate the stress caused by a diagnosis is positive. Charities such as BRACE encourage the public to engage with the idea of dementia from a medical viewpoint. As lawyers we endeavour to empower the individual by considering the worst case scenario and making preparations, should the time come when dementia has taken a hold.

Forward planning cannot provide a cure for dementia, but hopefully it can ease the burden if the illness strikes.

For further information about powers of attorney or other issues regarding elder care, please contact Heledd Wyn or another member of our Court of Protection team.

Abuse of the elderly: a growing problem

Abuse in a domestic setting is a problem across all age groups in society, but some people are more likely to be abused than others and statistics show that the likelihood of abuse increases significantly in older age.

The Health and Social Care Information Centre (HSCIC) reports that in 2012-13, 62% of all referrals to Local Authority Adult Safeguarding teams involved abuse against adults aged over 65. This is a growing problem with Councils reporting a 20% increase in referrals over the previous year.

While there has, rightly, been a great deal of attention paid to reports of abuse in care settings, the HSCIC statistics show that marginally more referrals concerned abuse in a domestic setting.

Increasing age often makes people more vulnerable as they experience physical and mental problems, sometimes becoming more isolated from society and more dependent on others to meet their daily living needs. Sadly, the statistics indicate that, in some cases, the people who the older person might have expected to trust, are taking advantage of that dependence.

What is abuse?

The World Health Organisation definition of abuse, as formulated by the charity “Action on Elder Abuse” is:

‘A single or repeated act or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person’.

Abuse can take a number of forms and can be emotional, sexual, physical or financial. Financial abuse is  a problem across all age groups, but when people become older the potential for financial abuse increases as they may become more reliant on others to help them with their financial affairs or even to shop for them.  Calls to the Action on Elder Abuse helpline in 2013 recorded that more than £6 million was reported as stolen, defrauded or coerced from elderly victims.   This staggering sum comprised non-property assets only and reaches even higher levels when misappropriated property assets are taken into account. The majority of the victims were women aged over 75 and many of the abusers were close relatives. Adult children tried to justify their actions on the basis that they were receiving their inheritance a little earlier than might otherwise be the case.

How can financial abuse be prevented?

If you are still in charge of your affairs and are simply being assisted in matters such as shopping, Age UK suggests a number of simple, easy to implement safeguards, such as making sure that your PIN number and passwords to any accounts are kept secret. They also advise elderly people to remain on top of their financial affairs, check statements regularly, and not to sign blank cheques at any time.

It is important to continue to exercise the type of safeguards that you would probably have taken when you were younger and to accept help but within clearly defined limits. It might be helpful to have a professional involved to some extent in your affairs.  For example, if your Tax Return is being prepared by a professional he or she will be alerted to any major, unexplained changes to your finances.

If you are unable to deal with your finances at all, or anticipate that this might happen in the future, then think very carefully about the identity of the attorneys you appoint under a Lasting Power of Attorney. It is better to have more than one attorney and you can direct that they have to act jointly, or jointly in respect of certain matters, so that each acts as a safeguard for the other. For example, Violet appoints her two nieces to be her attorneys. She consults her solicitor and, as a result, appoints her nieces jointly and severally in respect of most matters but provides that if a sale of her house has to take place then they have to act jointly. She also provides that they should produce yearly accounts and have them checked by her solicitor.

If you do not have suitable people to act as your attorney then a professional attorney such as a solicitor can be appointed and might in some cases be the safest choice.

What to do if you are a victim of abuse or suspect someone is being abused?

Help is available from a number of sources: Action on Elder Abuse supports a free 24 hour helpline for the elderly, Silver Line;  Age UK also offers a telephone advice service.  A referral can be made to the Vulnerable Adults team in the Social Services department of the relevant local authority and, if the elderly person is living in a care home, the Care Quality Commission can be called directly. Your GP, care worker or the police are also people to whom you can turn.

Useful telephone numbers:

Silver Line: 0800 4708090

Age UK Advice: 0800 1696565

Care Quality Commission: 03000 61 61 61.

Choose the route with which you feel most comfortable but do take action as soon as possible. If you would like to discuss any of these issues please contact Heledd Wyn or a member of our Court of Protection team.

Powers of Attorney and Inheritance Tax Planning – the do’s and don’ts.

In  a recent decision made by Senior Judge Lush in The Public Guardian v AC & Anor [2014] EWCOP 41 (05 November 2014) – it was held that an attorney appointed under a Lasting Power of Attorney had behaved in a way that “contravened his authority and has not been in P’s best interests”.

It is a fundamental principle of acting as an attorney (or deputy) that all actions must be in the best interests of the donor (or P). Simply being able to sign a cheque book because the power of attorney or court order says that such signatures can be made, does not confer authority to make payments without proper regard as to why these payments are made.

The other issue that arose during the case concerned inheritance tax planning. Senior Judge Lush makes it clear in his judgment that “s12 of the Mental Capacity Act 2005 confers on attorneys a limited authority to make gifts of a reasonable amount on customary occasions. If attorneys wish to make more extensive [gifts] for Inheritance Tax planning purposes, such as setting up monthly standing orders of £250 to themselves, they should apply to the Court of Protection for an order pursuant to section 23(4) of the Act”.

Judgments such as this make me worry about the lack of knowledge of attorneys and deputies.

As a solicitor specialising in this matter, I spend a lot of time reading case law, statute, attending courses and liaising with other professionals. I carefully consider the decisions made by my colleagues who are professional attorneys (for whom I act) and ensure that all decisions are carefully recorded and accounts maintained.

Accepting an appointment as attorney does not automatically mean that someone has all the necessary financial and legal skills to manage the affairs of another. With great power comes great responsibility.

For information about the duties of an attorney or putting in place a Power of Attorney please contact Heledd Wyn on 0845 209 1495.

Clarke Willmott’s Court of Protection team

Chambers and Partners 2015 has been published today – the directory that identifies the most outstanding law firms and lawyers in the UK and internationally.

Until a few years ago Clarke Willmott didn’t have a Court of Protection team, so perhaps we can be forgiven for being extremely proud and pleased at seeing the team’s first entry in the UK-wide rankings.

The entry acknowledges our expertise and capability, but for the team – and particularly for this type of work –  it was more significant that clients commented on our  “willingness to act above and beyond.” 

We really do appreciate the kind comments, and look forward to carrying on supporting individuals and families caring for elderly and vulnerable relatives.

Court of Protection: Autonomy and empowerment of the individual – the view from the other side

Autonomy and empowerment were discussed with great enthusiasm at our recent conference. The focus of the day was on health and welfare matters and the implications on P.

Health and welfare matters in the Court of Protection come under the auspices of the family court. This means that there are parallels to be drawn with the treatment of children in the courts and that their welfare is paramount.

It was fascinating to listen to the various speakers talk about their involvement in some extremely high profile cases concerning individuals and their welfare. We heard from Professor Hugh Rickards about his clinical experience of assessing capacity, barrister Simon Burrows spoke about the Cheshire West decision and the far reaching implications; six months on – are we all living in a ‘gilded cage’? The keynote speaker, Mr Justice Baker, was utterly compelling in his views on the treatment of P in the Court and the way that P and their welfare must be paramount (again, echoing the overriding principle of the Children Act).

I could go on! As a property and financial affairs lawyer who specialises in mental capacity and Court of Protection applications, the world of health and welfare practice has striking implications. Very often, we are called upon to consider whether the Court should authorise gifts or a statutory Will. This can often come down to a rather clinical exercise of ensuring that P’s financial health is catered for and I think that there is a danger of forgetting that P is at the centre of any decision. It would be very easy to look at the balance sheet, decide that P has enough money to pay for their care and consider my obligations discharged.

For me, the conference reinforced the fact that P’s wishes, feelings and best interests must be at the heart of any decision made by the Court and those involved in P’s affairs – whether that decision is about where they are to live, or whether their excess assets can be gifted to a close relative who enjoyed this patronage prior to P’s incapacity.

Most of all, even though P is anonymous in court proceedings, we must never forget that they are a real person who needs to be taken care of.

For further information on this issue please contact Heledd Wyn on 0845 209 1495 or heledd.wyn@clarkewillmott.com

A map through the forest of Court of Protection forms

For anyone involved in Court of Protection proceedings the number of forms to be completed and signed by various parties can be something of a daunting process.  Caroline Featherby, a Solicitor in Clarke Willmott’s Court of Protection team, has summarised the forms and their function below.

The following forms are required when making an application to the Court of Protection for the appointment of a deputy:

  • COP1 – this is the application form and whenever one of these is submitted a cheque in the sum of £400 must accompany it (if none of the exemptions apply)
  • COP3 – this is the assessment of capacity that needs to be completed by a medical practitioner confirming that P does not have capacity
  • COP4 – the deputy declaration is completed by the proposed deputy
  • COP9 – this is an additional form to be completed if the application needs to be placed on the fast track system (for example if the sale/purchase of a property is imminent). This will sometimes be accompanied by a COP24 witness statement if further information is required.

Once the application has been sent to the Court, they will respond within 2-3 weeks with an issued COP1 bearing the stamp of the Court of Protection. The relevant persons then need to be served with the following forms.

  • A respondent – needs to be served with a copy of the issued COP1 and a COP5 for them to complete and return. The COP5 confirms their consent to the application.
  • A person to notify – needs to be served with a COP15 notice and a COP5 to complete and return as above.
  • P – needs to be served in person with a COP14 notice; a COP20A needs to be completed by the person who notified P and then returned.

The applicant then needs to send the following forms back to the Court:

  • Completed COP5’s from all respondents and persons notified
  • COP20A confirming P has been notified
  • COP20B confirming the respondents and persons to be notified have been notified

Upon receipt of the COP20A and B above the application will then be considered by the Court.

When the Order is granted a further form will be sent to the applicant in relation to setting up the security bond with Deputy Bond Services (DBS). Once the Court have been informed by DBS that this is in place, they will stamp and send out the final order to the applicant.

A further COP14 is served upon P on granting of the final order to inform them that an order about them has been made by the Court of Protection.

Now that the deputyship is in place the deputy can proceed with managing the property and financial affairs of P.

Between 6 and 8 weeks before each anniversary of the deputy appointment, the Office of the Public Guardian will contact the Deputy and ask for the OPG Report to be completed and returned to them. This report details all decisions made through the year and a record of all income, expenditure and capital.

If you require any further information in relation to any of the Court of Protection forms of deputyship matters generally, please contact Caroline Featherby on 0845 209 1358.

Next time I will be discussing what happens when someone objects to a Court of Protection application.

Court of Protection: Autonomy and empowerment of the individual

On 17 October 2014 Clarke Willmott is hosting a one day conference ‘The Mental Capacity Act 2005: Promoting Autonomy and Empowerment’.   Ahead of the conference Joanna Burton looks at the way legislation has evolved over the past forty years, placing individuals at the centre of the procedures that affect them.

Empowerment of the vulnerable individual lies at the heart of our work, whether that individual has capacity or is unable to make decisions relevant to his or her welfare, and whether we are acting on behalf of the vulnerable person, or for a family member, friend, carer or advocate. Professor Hugh Rickards will talk to us about his clinical experience of assessing capacity at the conference.

Over the last twenty five years there has been a gradual but consistent development in health and social welfare legislation putting empowerment of the individual at its core.  The Children Act 1989 was, perhaps, the first step in this process, making the ‘welfare of the child paramount’; it is the right of the child to have contact with both parents not the right of the parents to have contact with their child.

The protection of human rights has been an important development and since the European Convention on Human Rights became enshrined into the law of England and Wales, Scotland and Northern Ireland in 1998, all individuals in the United Kingdom have their rights under that convention protected.

Under Article 8 the individual is protected from arbitrary or unnecessary interference from the state in his or her private and family life, and it can also provide leverage upon the state to provide services to ensure that P’s rights under Article 8 are not breached.

In the recent case of P (Appellant) v Cheshire West and Chester and another and P and Q v Surrey County Council [2014] UKSC 19 Lady Hale spoke of the ‘universal character’ of human rights and underlined that ‘people with disabilities have the same human rights as the rest of the human race’ She spoke further of the State’s ‘duty to make reasonable accommodation to cater for the special needs of those with disabilities’.   Simon Burrows will be talking about this case, and  its implications six months on.

Throughout the 1990s various pieces of anti-discriminatory legislation were passed, culminating in the Equality Act 2010.  At the core of the Equality Act 2010 is the individual’s right to be treated equally and have equal opportunities irrespective of age, gender, disability,  race, colour, creed or sexual orientation. Obligations lie with the employer, or the provider of services and ultimately the state to ensure that the principle is respected and acted upon.

In October 2007 the Mental Capacity Act 2005 came into force.  Fundamentally the MCA provides the legislative framework to ensure that an individual who lacks capacity to make decisions is treated with the same autonomy and respect given to adults with capacity.  Any actions or decisions made on behalf of P must be in P’s best interests.   The Act promotes and, in certain circumstances, makes it a duty for an Independent Mental Capacity Advocate, an IMCA, to be appointed to be the voice of P.  I would like to see an IMCA appointed for P when any major decision is being made, irrespective of whether other family members are willing to speak on P’s behalf.  In my view an IMCA is the acknowledgement of the autonomy of P and should be a fundamental part of P’s armoury. Jakki Cowley and Sue Lee from ‘Empowerment Matters’ will be talking about their work as IMCA’s and their important research which has recently led to the publication of their ‘Guidance for Assessing Supporting and Empowering Specific Decision making’.

The Court has been at the forefront of empowering P.  Jurisprudence has set the bar low for assessing capacity.  Our key-note speaker, Mr Justice Baker has discussed (in CC and KK and STCC [2012] EWCOP 2136) maximising the entitlement of the individual to make his or her own decisions, however unwise they may be.   Best interest decisions made by the court have tended to resist the risk averse decisions that might be made by a local authority and have enabled P to go on holiday or return home when risks may appear to others to be quite high; the case of Manuela Sykes which I discussed in May is a prime example.   Mr Justice Bakerwill be our key note speaker at the conference on 17 October 2014  giving his thoughts on cases that have been before him recently.

The Court of Protection rules and procedures also place P at the centre of the case, requiring that P is served with any application to the court and that those interested in his or her welfare are also notified.  In my view, however, it is an anomaly that P does not have to be joined as a party to Court of Protection proceedings.   P is almost always joined in ss15,16 and s21A MCA 2005 health and welfare and deprivation of liberty proceedings, so for P to have potentially no part in proceedings where life changing decisions are being made for them, or where their liberty is at stake, this is in my view a breach of Article 5(4), Article 6 and potentially Article 8. It is our understanding that clarity on this issue is being sought as permission has been requested to appeal Sir James Munby’s recent decision in Re X and others (deprivation of liberty) [2014] EWCOP25 that P may not have to be joined in deprivation of liberty proceedings that do not fall under s21A MCA 2005. Watch this space.

Although I fully acknowledge the logistical and financial difficulties in P’s participation and representation in proceedings, in my view it is P’s fundamental right under Article 6 and rather than being brushed over, this needs to be addressed.   If P lacks the capacity to litigate (and most P’s in Court of Protection proceedings do) he or she will need a litigation friend.  There is a real shortage of people willing to act as litigation friend to P and the pressure on the Official Solicitor (OS) as litigation friend of last resort is overwhelming.   Clarke Willmott has been in the forefront of encouraging and supporting advocates and RPRs to be litigation friends to P Sophia Roper from the Office of the OS will be speaking at our conference and we will no doubt cover this problem in discussions.  Perhaps, as with the Court of Protection Panel Deputies, the court could consider setting up a panel of Litigation Friends.

The financial issue of P’s participation in the proceedings must also be considered. Court of Protection proceedings are very costly and few fall below £10,000 by their conclusion.  Non means tested legal aid is only available to P in s21A MCA proceedings which challenge a DOLS Standard authorisation.  Legal Aid for all other proceedings is means tested.  We often act for individuals who have savings of less than £15,000, but more than the £8,000 legal aid limit. Until their savings have been whittled down in legal costs to below £8,000 we cannot apply for legal aid, and that is without taking into account a capital contribution they will have to pay if they have savings of more than £3,000.  Non means tested legal aid is available for a child in child care proceedings, and we feel quite strongly that it should be available for P who lacks the capacity to litigate so that they can be properly legally represented in all proceedings concerning their life and liberty in the Court of Protection.

The Care Act 2014 comes into force in April 2015, placing “wellbeing” at its core and setting out that a local authority must have regard to “…the importance of beginning with the assumption that the individual is best placed to judge the individual’s wellbeing”. In the words of Martin Luther King ‘ It may be true that the law cannot change the heart but it can restrain the heartless. It may be true that the law cannot make a man love me but it can keep him from lynching me and I think that is pretty important, also’.

Laws and jurisprudence may not on their own change hearts but they can change practice. To properly empower our most vulnerable individuals we need to use all the resources available. Notwithstanding the austerity measures the legislation and our courts are clear that the rights of the individual are at the core of any process.

For further advice about capacity issues please contact Joanna Burton or a member of our Court of Protection team.

Older People’s Day

1 October 2014 is Older People’s Day – a UK event that joins the UN International Day of Older Persons to celebrate the achievements and contributions that older people make to our society and challenge negative attitudes and outdated stereotypes.

The welfare and happiness of older people often requires an understanding of complex legal issues relating to their care. This can seem like putting the pieces of a jigsaw together – until everything is in place it is difficult to see the solution, but the process can begin with finding the right person to talk to, for example to arrange a care or finance assessment.

The Elderly Care team at Clarke Willmott is uniquely qualified to provide advice and assistance. In addition to our knowledge of the law, we understand that the circumstances for each family will be different. Whether you want to put arrangements in place for yourself, or if you are supporting someone who needs help due to old age or dementia, we can help.

Meet the team:

Anthony is a Partner and specialises in Court of Protection and elderly care advice. He works with families, case managers and local authorities to ensure that the financial affairs of people who cannot manage their own finances are properly managed. He is the only Court of Protection panel deputy in Bristol and Somerset. He has undertaken the CF8 qualification in Long Term Care and is a full member of Society of Trust & Estate Practitioners and Solicitors for the Elderly (SFE).

Jess Flanagan is an Associate whose expertise includes residence, care and contact disputes between private individuals and public authorities. This might concern an adult who lacks the mental capacity to make important welfare decisions themselves. Jess has specialist knowledge of Safeguarding procedures, Community Care law, the Deprivation of Liberty Safeguards (DoLS) framework and Mental Health Act 1983, including representation of detained patients in the Mental Health Review Tribunal.

Heledd Wyn is an Associate who specialises in elder client issues, including estate planning, powers of attorney and Court of Protection applications. Heledd has a particular interest in the care of older people with capacity issues, which may involve care home funding, powers of attorney and Court of Protection matters. Heledd is a secretary to the Somerset Regional Group of SFE and has been co-opted onto the STEP Mental Capacity Special Interest Group. She assists with the dissemination of information regarding capacity to members of STEP via the group’s newsletter.

Joanna Burton is a Solicitor whose background is in local authority work. She has considerable experience of advising in respect of the safeguarding process and works with individuals who have suffered abuse from carers, family members, friends and acquaintances which may have occurred at home or in residential care homes or supported living accommodation. Joanna also has considerable expertise in understanding social care needs assessments, the calculation of personal budgets and direct payments, charging for services and the statutory obligations of local authorities to provide and fund such services.

Caroline Featherby, Jacqui Alexander, Terri Stone and a team of legal assistants help us provide a service of the highest of standards.

We are all delighted to be supporting Older People’s Day – today and every day!

For further information or to discuss elder client issues, please contact a member of our team.