Elderly Care and Court of Protection Law

Alison Lamont, a solicitor in the Court of Protection team at Clarke Willmott LLP, explains the importance of talking about and preparing for dementia.

This week is Dementia Awareness Week (19-25 May 2013).  The Alzheimer’s Society is running the campaign to promote awareness, understanding and open communication about the different types of dementia that will affect many of us in later life.

The Alzheimer’s Society has produced a booklet called “it’s time to talk about dementia” setting out the situations where a conversation about dementia may be appropriate.  These are listed as:

• talk to someone you are worried about
• if you are worried about symptoms you are experiencing, talk to your GP
• talk to your friends and neighbours
• talk to the Alzheimer’s Society.  There is a national Dementia Helpline: 0300 222 1122 helpline@alzheimers.org.uk

We would add to this list “talk to a specialist solicitor”.  We can talk you through the legal and financial implications of dementia, such as helping you to plan for the future, or dealing with a new or long-standing diagnosis.

The Alzheimer’s Society recomments using Solicitors for the Elderly lawyers and many of our solicitors at Clarke Willmott are members of this organisation.  We are specialists in mental capacity law and can talk to you about the following issues in strict confidence:

• whether a Lasting Power of Attorney or a Deputyship for Property and Affairs is appropriate;
• if you are an attorney under and Enduring Power of Attorney and have concerns about the donor’s mental capacity, we can advise you about the requirement of registration and help you achieve this;
• advance decisions;
• care home fees and funding issues;
• what to do if someone you know suffers from dementia and is unhappy in their current residence.

If you have legal and financial concerns we can help set your mind at rest and would emphasise the campaign healine: worrying changes nothing, talking changes everything.

Posted in: Attorneys and deputies, Care Funding, Court of Protection, Dementia, Elderly care, Lasting Powers of Attorney, Mental Capacity
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The choice of litigation friend for a vulnerable adult can sometimes be contentious.

Where the Relevant Person’s Representative (“RPR”) is a professional, it is often easy for all parties to agree to the professional also acting as litigation friend.

If, however, the RPR or the proposed litigation friend is a family member or someone associated with the family, what happens if the parties disagree about the proposed appointment?

I once acted in a case for “P”, taking initial instructions from a proposed (informal) litigation friend, who had acted as P’s RPR in the same proceedings, but was also a party in their own right.  Before the hearing to appoint the litigation friend we believed that the majority of the other parties agreed with the proposed appointment, but on the morning of the hearing the Local Authority applicant changed its mind (for understandable reasons) and asked for the Official Solicitor (“OS”) to be apppointed.

There was clear evidence that it was in P’s best interests to have final declarations made on that day, but the procedure of the OS accepting the case would have caused a delay.  The Judge therefore agreed to appoint the litigation friend that we had originally proposed to give effect to the final declarations.

In the same case, an Independent Mental Capacity Advocate was appointed as litigation friend to another party who lacked capacity – indicating another shift towards the appointment of alternative litigation friends.

The decision made by the Judge in this case is similar to that made in an unreported case (WCC v AB and SB) in 2012, where the need to provide representation for AB could not wait an additional 10 weeks for the OS to be appointed. Despite opposition from the Local Authority, AB’s aunt was appointed as litigation friend – again confirming that the OS should really be the litigation friend of last resort.

There has been some reduction in the delay caused by the waiting list of the Official Solicitor, but as welfare cases are set to increase, more needs to be done.

Given the willingness of some Independent Mental Capacity Advocates to act as a litigation friend, more could be done to tap into that as a national service. Not all organisations providing advocacy and Paid Representative services have caught up, but there is talk of more guidance and support being provided to assist those organisations in allowing their Paid Representatives to act in this way. This is welcome.

My suggestion is that perhaps one or two advocates from each regional area where the Court of Protection sits could take on the role of a Paid Representiatve litigation friend.  This might speed matters up considerably and is generally in the best interests of everyone involved in these cases, which are often complicated, time consuming and difficult.

For more information about who may act as a Litigation Friend, please contact me for a copy of our information sheet.

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James Radcliffe, a solicitor specialising in personal tax and estate planning issues has recently joined our team and will be posting regular updates about some of the key issues he encounters”

The Dying Matters Coalition was set up in 2009 to promote public awareness of dying, death and bereavement in the UK.  As part of the Coalition’s efforts, this week (13-19 May 2013) is being promoted as ‘Dying Matters Week’. 

Research shows that the majority of people in the UK have not discussed or made any plans for when they die.  For example, 89% of people have not written down their funeral wishes, 60% have not made a will and only a third of people have registered as organ donors.

By putting in place appropriate measures during our lifetime, the emotional burden on those left behind after our death can be significantly lifted.  As part of Dying Matters Week, all adults in theUKare being encouraged to take five steps considered to be crucial to living and dying well.  These steps are:

1. Make a will – Signing a will ensures that your wishes are carried out following death. In the absence of a valid will, a person’s estate devolves in accordance with theUK intestacy rules, which can result in assets passing to unintended beneficiaries, or giving rise to unfavourable tax consequences.  A properly drafted will is the opportunity to ensure that people you trust are appointed to look after your minor children or administer your estate, and ensure that your assets pass in accordance with your intentions. By making a will, inheritance tax liabilities are minimised and steps can be taken to defer the inheritance of young children if there are concerns about them receiving too much too young.  
2. Record your funeral wishes – Many people have strong preferences about funeral arrangements, including whether they are to be buried or cremated and where their funeral is to be held.  There is plenty of scope to set out your wishes in this regard within your will. 
3. Plan your future care and support –  It is important to have discussions with those you love, or your GP, about the type of care you would like in later life.  Ideally, safeguards should also be put in place to cover the possibility that you may one day lose the mental capacity to make your own decisions about your health and welfare. These safeguards can be achieved by signing a Lasting Power of Attorney appointing people you trust to act as your attorneys in the event of your incapacity. 
4. Register as an organ donor – An organ transplant can dramatically improve or save someone’s life and you may wish to allow other people to benefit from your organs after your death. This is an entirely personal decision and an extremely difficult one for a family to make. By registering as an organ donor and telling your family about your decision, you can be sure that they are aware of your wishes and make it easier for them to agree to your donation.
5. Tell your loved ones your wishes – Discussing your thoughts with relatives and loved ones will give you the opportunity to express your wishes and understand the views of your family.  It is also an opportunity to give family members some input about events after your death.

Our specialist estate planning lawyers have experience in dealing with all of these issues.  For more information please contact us for advice.

Posted in: Attorneys and deputies, Dementia, Elderly care, Lasting Powers of Attorney, Living Wills, Mental Capacity, Statutory will, Wills
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When an individual lacks the mental capacity to take part in welfare proceedings in the Court of Protection, a litigation friend may be appointed to represent them. They will either instruct a solicitor to act on behalf of the person who lacks capacity, or they can talk directly to the Judge to provide the views of the person they are assisting.

A litigation friend can be a family member, an advocate or the Official Solicitor – the litigation friend of last resort, holding a public office and funded by the Government.

If the individual (known as “P” in the Court of Protection) is joined as a party to the proceedings, a litigation friend must be appointed before any significant orders are made about them.

The Official Solicitor as litigation friend

In the early days of welfare litigation in the Court, the Official Solicitor (“OS“) would be approached without a second thought and initial directions orders came back from the Court of Protection on a regular basis joining P as a party and inviting the Official Solicitor to act as litigation friend. I found this most frustrating when making applications on behalf of P where a different person, perhaps a family member, had already been proposed and in some cases agreed by the other parties as someone who would be suitable to act as litigation friend.

Because of the Court’s reliance on the OS and the increase in welfare applications, the OS has been overwhelmed by applications to act.  So in February 2012 the OS set out strict criteria for accepting cases and until very recently, had a pretty lengthy waiting list. A case I was involved in was on the list from mid October until mid February. The proceedings continued without P being represented, but because of the bad feeling between the other parties, nothing much was achieved until the OS was able to consent to act and to appoint a case worker.

The OS has recently made some extraordinary efforts to ensure that the cases are allocated more quickly and in a letter to barrister’s chambers 39 Essex Street, the current Official Solicitor, Alistair Pitblado, set out the current situation – found here.

Appointing someone else as litigation friend

The Court of Protection judges are beginning to be more open to the idea of alternative litigation friends being appointed. Other representatives may already have been appointed for P so could one of these be appointed as litigation friend?

For example, in deprivation of liberty cases a Relevant Persons’ Representative (“RPR“) is appointed to assist an individual in understanding, reviewing or challenging the decision to place them in a particular care home or hospital.  If there is no family member available to take on this role, or it is not appropriate for a family member to act in that way, then an independent professional RPR must be appointed. This is in addition to any Independent Mental Capacity Advocate who may be asked to provide a Section 39D report to set out the ascertainable wishes and feelings of the person deprived.

In a very brief and unreported case I successfully argued that a RPR should be appointed as litigation friend, but the 2011 case of AB v LCC considered the issue in more detail. Mr Justice Mostyn concluded that:

“There is no impediment to a RPR acting as a litigation friend to P in a s21A application provided that: (i) the RPR is not already a party to the proceedings; (ii) the RPR fulfils the COP rule 140 conditions (that he can fairly and competently conduct proceedings on behalf of P, and has no interests adverse to P’s); (iii) the RPR can and is willing to act as litigation friend in P’s best interests; and (iv) the procedure as set out in COP rule 143 is complied with.’”

I welcome this change in attitude by the courts, which allows cases to be heard much faster and for the vulnerable person to be represented by someone they are familiar with and who knows them well.

For more information about who may act as a litigation friend, please read our client information sheet or contact me.

Posted in: Attorneys and deputies, Court of Protection, Dementia, Elderly care, Mental Capacity, Uncategorized
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What does it mean when we talk about Deprivation of Liberty Safeguards?

I am frequently asked to give a summary of what a Deprivation of liberty is and how one could be spotted. The simplest explanation is that when someone who does not have the necessary capacity to consent to their care or treatment is placed in a care home or hospital against their expressed wishes, it may be that they have been deprived of their liberty.

If this situation arises, the individual’s placement must be ‘Authorised’ by the Local Authority responsible for the care home or hospital. This is a requirement of the Deprivation of Liberty Safeguards (“DoLS”) framework, which arose following a case in the European Court of Human Rights in 2004 against the United Kingdom Government and was established to protect the individual deprived of their liberty. Importantly, it provides a process of review to ensure that the deprivation is in accordance with the European Convention on Human Rights, which was previously missing from UK legislation.

Challenging an Authorisation

Anyone connected with the person deprived of their liberty can challenge an Authorisation by bringing proceedings under Section 21A of the Mental Capacity Act 2005 (“MCA”) in the Court of Protection.   In order to benefit from non means tested legal aid  the case must be brought by the individual concerned or by their Relevant Person’s Representative (“RPR”). The RPR is someone who has been appointed to assist an individual who is deprived of his liberty in understanding, reviewing or challenging the decision to place them in a particular care home or hospital.

One of the early leading cases in this area involved an Autistic man who was placed into respite care by his father for a short period of time, only to be kept in care (later determined to be an unlawful deprivation of liberty) for over a year. The case of Steven Neary was interesting for many reasons; not least for giving an interpretation of the then new framework relating to DoLS and making it clear that:

• the DoLS framework should not be used to restrict contact between family members and an individual who lacks capacity, nor to override their wishes and views as to best interests;
• money damages will be available for an unlawful deprivation of liberty; and
• there was a paucity of legal representation for individuals wishing to challenge an Authorisation where they are not the person deprived or their RPR.  In this case Steven’s father searched for months to find legal representation and ended up without throughout the proceedings.

Finding legal representation

The problem of finding legal representation in these cases is compounded by the lack of official information on how to challenge a DoL and the complexity of the law in this area.  The answer is to instruct a law firm, like Clarke Willmott LLP, which is able to carry out publicly funded work and has experience in these types of cases.  Click here to find other suitable advisers.

It should be noted that cases can often very quickly morph from being a challenge under Section 21A into a welfare case  involving applications for declarations as to capacity and best interests to be made under sections 15 – 17 of the MCA, to which the normal funding rules apply – as explained in a previous blog. Often individuals will start proceedings (with the assistance of a litigation friend if they lack the capacity to litigate) with the benefit of legal aid but then may have to fund the action themselves in the later stages. 

How certain is the law in this area?

Since Mr Neary’s case, there have been many more challenges brought in the Court of Protection to determine whether a DoL is lawful.  This is partly because whether a set of restrictions on an individual’s liberty amount to a deprivation is currently unclear. Guidance can be found in Chapter 2 of the Code of Practice to the Deprivation of Liberty Safeguards and throughout subsequent case law, but because Judges have to pay careful attention to the views of the European Court of Human Rights (“ECHR”) on what constitutes a DoL, the current position is, in the view of practitioners and lawyers alike, as clear as mud.

A 2011 Court of Appeal case (Cheshire West) made matters somewhat difficult for individuals not consenting (and lacking capacity to do so) to receive care and treatment in such an environment because of the ‘relevant comparator’ test applied by Lord Justice Munby.  Under this test, the Court looks at lives that people like the individual in question would normally expect to lead in deciding whether there has been a DoL:

“The contrast is with the kind of lives that people like X would normally expect to lead. The comparator is an adult of similar age with the same capabilities as X, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations as X”

My concern about this test (shared by many, not least Mr Justice Baker in the case of CC v KK and STCC) is that vulnerable adults held in care homes against their wishes will be denied relief just because there might be many more people in the same situation.

An appeal against this decision will be heard by the Supreme Court in October this year. It is hoped that the law will become clearer and perhaps swing round to becoming more protective.

Should the DoLS framework be reviewed?

There is no doubt that the DoLS framework could benefit from being looked at by Parliament again. My suggestion, for what it’s worth, is based around the procedure as opposed to the law. If asked, I would support recommendations for a simpler process of review by an impartial tribunal (as required by Article 5 (4) ECHR) and would perhaps encourage a move towards using a system similar to that established for determining applications made by and on behalf of individuals detained under the Mental Health Act 1983.

For assistance with this type of case please contact me.

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I have noticed another thread of decisions coming from the Court emphasising that an individual who lacks capacity should be supported in making certain decisions, even if on a first look the decision wouldn’t appear to be in their best interests.

In an unreported case of NYC v PC and NC in late 2012, a woman (PC) was deemed as lacking the mental capacity to resume contact with her husband, who could pose huge risks to her, having just been released from prison.

Although one might have expected the social worker involved to offer a more restrictive approach to the decision made, she actually considered that, notwithstanding the risks, it was in PC’s best interests for them to resume their married life. Not allowing contact to go ahead would have been seriously distressing for the woman due to her strongly held wishes. The Court was therefore asked to confirm that the Local Authority could decide that PC should be allowed to resume contact with her husband.

In giving this confirmation, Mr Justice Hedley took the opportunity to talk about making ‘unwise’ decisions on behalf of the individual who lacks capacity and expressed the view that “it may be necessary from time to time to leave open to the protected person the option of taking an unwise decision which others, who are fully capacitous in her position, may themselves have taken.”

He appeared to take the same approach in the case of the unreported case of Re P (abortion) earlier this year.  With permission given to the press to report this case, the Independent refers to Mr Justice Hedley’s warning ‘that courts and health officials should generally refrain from trying to decide whether someone with limited mental functions will be able to bring up a child and must instead concentrate solely on whether the pregnancy itself is in their best interests.’   The basis for his decision is that the legal framework should support individuals in making decisions, rather than protect them from making mistakes where there are already legal procedures in place to address any such mistakes – such as child care proceedings to remove a child from a parent who would put a child at risk.

Supported decision making in practice

I am currently advising on a case where one of the parties is arguing that a lack of sufficient information has been provided to an individual to support them in taking a decision about a particular (yet not specific) matter. Although the case of CC v KK and STCC was raised with a request for additional information to be provided, the information was simply not available. However, medical evidence revealed that on the balance of probabilities the individual did lack capacity to make the particular decision and that the introduction of more specific information would not make a material difference. The point was not disputed in the end, but it would have been interesting to have seen how the Court would have dealt with that, in light of CC v KK and indeed with the decision specific nature of the Mental Capacity Act 2005, yet balancing this against the need for the matter to proceed more swiftly to enable additional information to be obtained.

If you need help in challenging a restrictive decision by an Authority or are worried that someone is being assessed as lacking capacity incorrectly, please contact me for advice.

Posted in: Attorneys and deputies, Court of Protection, Dementia, Elderly care, Mental Capacity
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I frequently find myself reminding a Local Authority or Health Authority seeking to make decisions on behalf of elderly people or vulnerable adults without consulting family or without taking into account the individual’s views, that the Mental Capacity Act 2005 does not allow for unilateral decision making.

Often, this is not due to any malice on the part of the professionals involved, but perhaps a fear of not getting it right, or exposing the vulnerable person to some risk of harm.  We live in an ever increasing blame culture, so the fear of later being held responsible for the decision has made these organisations and the people who work in them perhaps too risk adverse.

I have always had a more risk positive attitude, perhaps because of the contact I have had with family members and also because of the clear themes coming through cases that have been heard in the Court of Protection.  These cases indicate that there should be greater emphasis on supported decision making; greater autonomy given to vulnerable adults and less weight given to a risk adverse decision making process.

Getting the balance right

The following quotation, from a recent decision (CC v KK and STCC) concerning an elderly lady’s capacity to decide where she should live, succinctly sets out the balance that we need to achieve:

“The fact is that all life involves risk, and the elderly and the vulnerable are exposed to additional risks and to risks they are less equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else…. Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare.  What good is it making someone safer if it merely makes them miserable? None at all! And if this is where safeguarding takes us, then is it not, in truth, another form of abuse – and, moreover, abuse at the hands of the State?”

This reminds me of another case where the Court of Protection decided that a woman with dementia did have the capacity to make the decision to go on a cruise (as she did every year with her partner) and that even if she hadn’t, it would be in her best interests to do so.  Quality of life must be balanced against imposing a restrictive decision. On occasion, cautious decision makers place too much emphasis on alleviating all risk of harm as opposed to putting in place mechanisms to ensure the risk is properly managed.

Are things changing as a result?

Despite these cases I am still coming across restrictive decision making. A current case where I am concerned that risk is being unequally balanced against quality of life involves an individual who has been deprived of his liberty in a care home that he finds wholly inappropriate for his needs. He is  further restricted as a result of decisions taken on his behalf by a Local Authority under a deputyship order relating to his financial matters. This is not uncommon.

The Official Solicitor, appointed to represent individuals who lack capacity to carry out the litigation themselves, has recently given an interview in The Times (4 April 2013) and has said that ‘Patients’ families are asserting their rights or what they perceive to be their rights and becoming more assertive with clinicians; clinicians are becoming more cautious and seeking the protection of a court order…’

The profile of the ‘most secret court in England’ is rising and is widely acknowledged as being an excellent forum for challenging restrictive decisions, or for ensuring that the Mental Capacity Act is followed when decisions are made.

If you need help in challenging a restrictive decision by an Authority or are worried that someone is being assessed as lacking capacity incorrectly, please contact me for advice.

Posted in: Attorneys and deputies, Court of Protection, Dementia, Elderly care, Mental Capacity
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Jess Connelly, a solicitor specialising in welfare applications in the Court of Protection has recently joined our team and will be posting regular updates about some of the key issues she encounters.

Funding your application to the Court of Protection

It is safe to say that safeguarding vulnerable adults sits very highly on the social welfare agenda today. We have Winterbourne, the NHS Mid Staffs, the CQC under fire and generally, I think everyone knows and understands a little bit more than they used to about people with disabilities and people who may not be able to make decisions themselves. Given the ageing population and the increase of diagnoses of dementia type illnesses, it is likely that most people will have had experience of someone first hand who simply cannot make a decision for themselves. To some people, decisions about their welfare are more important to them than how their money is managed.

This growth in awareness is reflected by an increase in the number of matters heard in the Court of Protection.  With the Court now in its 6th year of making welfare declarations the number of welfare orders made has risen from 182 in 2009 to 835 in 2012.

When does the Court of Protection get involved?

The Court will usually get involved in these types of cases where no agreement can be reached between those (both family and professionals) involved in the individual’s life.  It has power to make declarations about whether an individual has mental capacity, and whether an act or proposed act was or would be lawful in respect of various welfare type decisions such as medical treatment, care, living arrangements and contact. 

You can represent yourself in the Court of Protection, but this can cause further complexity and confusion and importantly, delay for certain cases. If a matter is complex, and you find yourself involved in a matter where the other parties (people or organisations involved in the case) are represented by lawyers, you should consider appointing your own lawyer.

How do I pay for a lawyer?

This is perhaps the greatest concern for people who find themselves embroiled in a dispute that may end up in the Court of Protection.

Cuts are being made in all aspects of public spending and public funding and certain areas of legal work, such as some family, housing cases and employment are no longer funded by legal aid.  The good news is that legal aid is still available for some applications to the Court of Protection.  This reflects the importance placed on safeguarding vulnerable adults in the public policy agenda.

Legal aid for this type of work will be means assessed.  To qualify an individual’s capital must be assessed as being less than £8,000, regardless of the state benefits received. Before April 2013 an individual who was in receipt of either Income Support, income related Job Seekers Allowance or Employment and Support Allowance or Guaranteed Pension Credit would immediately pass the means assessment, but this is no longer the case.

If you think that you might be eligible for legal aid it is worth doing a quick check on the online eligibility calculator or you could telephone me for a brief assessment over the phone.

How do I find a solicitor?

The next step, I suggest, is to approach a firm of solicitors, such as Clarke Willmott LLP who are contracted with the Legal Aid Agency (previously the Legal Services Commission) to provide legal representation in Court of Protection matters.

I am able to provide legally aided representation in welfare proceedings (not financial) in the Court of Protection so long as an individual is eligible on the basis of their means, the case has merit and the matter raises issues that will require representation at an oral hearing.  However, please note that legal representation before the Court of Protection will not, as a general rule, be funded unless the case involves one of the following:

• a person’s right to life,
• a person’s liberty or physical safety,
• a person’s medical treatment (within the meaning of the Mental Health Act 1983),
• a person’s capacity to marry, to enter into sexual relations, or
• a person’s right to family life.

For example, proceedings concerning where someone should live (ie when there is a dispute about whether an elderly relative should go into one care home, or another) are unlikely to be funded unless one of the options may involve an interference with their family or private life, or will result in them being deprived of their liberty.

Click here for my contact details.

Posted in: Court of Protection, Elderly care, Mental Capacity, Uncategorized
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I am often asked if there are occasions when it is a good idea for joint deputies to be appointed.  One such occasion is when a family member has received a large compensation award but is unable to manage their own affairs. 

The Court is very likely to request that a professional deputy be appointed to make sure that the right advice and decisions are given.

For instance, it is very important that appropriate tax and investment advice is received otherwise significant problems can be encountered further down the road.  It may be something as simple as making sure that the necessary tax return is completed.  It is often the simple steps that are overlooked.

Nevertheless, it is quite understandable that the family will not wish to feel excluded from the decision making process.  Although consultation is enshrined within the Mental Capacity Act, the appointment of a single professional deputy can leave the family feeling vulnerable as to whether they are going to be consulted or not.  The professional deputy, at this stage, may not be someone they know particularly well.  It is a significant leap of faith, jumping from having no adviser to the appointment of a Court of Protection deputy who completely takes over the management of their loved one’s finances.  It could easily lead to the husband or wife or mother or father feeling very vulnerable as all aspects of the family’s finances may be impacted upon by the appointment of a professional deputy.

The solution to this dilemma is a joint appointment.  This can work very well.  At the very beginning most deputies agree the delegation of tasks.  As the professional deputy I am often involved in making sure that the right investment and tax choices are made.  This is one area which is very important to get right.  There are so many advisers with different qualifications and charging structures that the wrong decision can have a very significant impact on the patient’s award.

At the same time, there are many day to day tasks that the deputy who is a family member is often happy to assist with or run.  For instance, there may be day to day purchases which need to be made.  I also find there are other areas where family members need to be very closely involved, for instance, where children are involved issues surrounding education and housing adaptations.

The other significant impact of a joint deputyship is that professional deputy costs are often less.  If a compensation award has been settled at a discount due to contributory negligence then this can be an important issue.

Posted in: Attorneys and deputies, Court of Protection, Elderly care, Mental Capacity
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I am the only Court of Protection Panel Deputy based in Bristol.  As a result I tend to help families based in the city, as well as in Gloucester, Somerset and Devon. 

I am normally asked to act by the Court of Protection where they are concerned that an individual, often elderly, is not being properly looked after by a family member who may have been appointed as an Attorney under a Lasting Power of Attorney or Enduring Power of Attorney .

It is extremely sad, but unfortunately common, when such a  position of great importance is abused.  I see again and again examples of when an Attorney has mixed their financial affairs with those of their mother or father.  While the reason for doing so is often expressed as being “what they would want” or “in their best interest”, the actions often demonstrate that sadly they have simply stolen money from their loved ones.  It can be expressed as a “loan” or an attempt at inheritance tax planning but it is normally very evidently in the interest of the Attorney rather than the mother or father who will have lost their mental capacity to make decisions.

The evidence is often clear to see.  A bank account may be closed with the proceeds diverted into the Attorney’s account.  A house will be sold with the money from the sale never returning to a bank account designated for the mother or father.  Alternatively, incoming benefits may be diverted away from the mother or father.

The Office of the Public Guardian has become ever more vigilant of such behaviour.  It is incumbent upon an Attorney to keep accounts.  These can be simple.  Nevertheless, if someone has more complicated affairs then it is very important these are more comprehensive.

There are times when being an Attorney can simply become overwhelming.  The Attorney may have a busy work life or family life and become simply unable to properly manage the affairs of their loved one as they should.

I am increasingly assisting families with elderly loved ones where such problems have arisen.  I find that once steps are taken to put everything back on a proper footing then my involvement becomes minimal.  The sadness is seeing people towards the ends of the life finding that the very people that they trusted to look after them have, for whatever reason, failed to do so.

If you are struggling to carry out your duties as an Attorney please contact me for advice.

Posted in: Attorneys and deputies, Court of Protection, Elderly care, Lasting Powers of Attorney
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