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celebrate the achievements and contributions that older people make to our society and challenge negative attitudes and outdated stereotypes.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.

Happy Birthday Leonard

“I stumbled out of bed
I got ready for the struggle
I smoked a cigarette
And I tightened up my gut
I said this can’t be me
Must be my double
And I can’t forget, I can’t forget
I can’t forget but I don’t remember what”

Leonard Cohen

I don’t think that there can  be any doubt that the huge technological advances affecting all our lives are going to dramatically change healthcare, the way we interact with doctors and the long term prognosis for many diseases.

The ability to map individual DNA may well transform our ability to understand and fight diseases.  We will be monitored by iPads and watches following our every heart beat with the real live data of patients of the  NHS uploaded and available to influence treating options.

The upshot – we are going to live longer.  It could be a lot longer.  The new born of today will probably live beyond 100 and the politicians and general public continue to march towards a very major funding crisis.

For instance, we await further details on the Universal Deferred Payment Scheme introduced by the Care Act 2014 but the pledge that no-one needs to sell their family home to fund their care is simply not supported by the published guidance or sustainable as a public funding proposition.  Some people will not have to sell their houses but an awful lot will.  Will Local Authorities have the resource to support self funders to pay their care fees to avoid the sale of the family home?

So what has this all to do with Leonard?  When Cohen left the music business for a Buddhhist retreat in 1994 many thought his retirement was permanent.  The subsequent misappropriation of $5 million from his bank account by his manager put pay to any such plans.  As he turned 80 this week few would have reckoned on Cohen releasing one of the finest albums of the year. For the generation of tomorrow Mr Cohen’s productivity at eighty might not be so unusual.

Happy  Birthday.




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.