Questions for the Minister for Courts and Legal Aid

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Health and social care law: Do not resuscitate case

John Boyle, a solicitor in our Clinical Negligence team considers the recent judgment concerning the obligation on medical professionals to consult with patients when putting a Do Not Attempt Resuscitation Order in place.

We welcome John’s piece to our blog and should you have any concerns about this type of issue, or any matter relating to medical negligence, or medical treatment, please do not hesitate to contact John on 0845 209 1255 or john.boyle@clarkewillmott.com

A case brought by the family of a woman who died after doctors had imposed a “Do Not Resuscitate Order” (DNARO) has succeeded in the Court of Appeal.

Janet Tracey had terminal lung cancer and was admitted to hospital following a road traffic accident. The Hospital Trust placed a Do Not Attempt Cardio-Pulmonary Resuscitation notice on her medical records file. That notice was cancelled after three days when her family expressed concerns about it as they had not been consulted. Three days later, her condition deteriorated and another notice was imposed after consultation with her family. Mrs Tracey died two days later.

An application for Judicial Review was brought by Mrs Tracey’s family against the Hospital Trust and the Secretary of State for Health alleging that her right to respect to private and family life (protected by Article 8 of the European Convention of Human Rights/the Human Rights Act 1998) had been violated by the failure to consult prior to imposing the DNARO. Article 8 protects personal autonomy relating to decisions about life and death.

The Court of Appeal unanimously found in the family’s favour. Giving the leading Judgment the Master of the Rolls Lord Dyson found that Article 8 was engaged and in Mrs Tracey’s case it had been breached. He said:

“A decision as to how to pass the closing days and moments of one’s life and how one manages one’s death touches in the most immediate and obvious way a patient’s personal autonomy, integrity, dignity and quality of life.”

The Court went on to find Article 8 meant that there have to be convincing reasons not to involve a patient prior to imposing a DNARO, it was for Hospitals to show what these convincing reasons are for non-involvement in the decision making process. Concerns of doctors that having such conversations may cause distress to patients will not be a good reason for not involving them. The Court did find that there would be no obligation to consult if as a consequence the patient will suffer psychological or physical harm.

The Court further found the absence of clear and accessible policies concerning DNAROs could also breach Article 8. Policies should be directed towards patients and families with copies given to them automatically.

The case will have a major impact on how DNAROs are imposed by healthcare providers throughout the UK. It is anticipated that bodies such as the General Medical Council and the British Medical Association will now revisit the guidance given to doctors in this area.

Anyone seeking legal advice on these issues should contact one of our specialist Health and Social Care lawyers on 0800 316 8892.

Court of Protection: Applauding Legal Aid and Clarke Willmott’s Jess Flanagan

Our team is just back from the Legal Aid Lawyer of the Year Awards (LALYs) and our own Jess Flanagan was a finalist in the Social and Welfare section.

Jess lost out to a very deserving winner and I am sure, as one of the youngest finalists in all categories, she will be back. We were told that Jess’s nomination had support from judges, experts, colleagues, opposing lawyers and of course her clients. For Jess, the compliments from her clients really count and she was touched that in the brief summary of her achievements a tribute from Jess’s first Court of Protection client was read out (you know who you are but confidentiality….).

It was striking that each of the finalists in all of the categories was prepared to go the extra mile for their clients; they were innovative and imaginative about its application and most of all they used the law to empower their clients when incredible odds were against them.

Legal Aid lawyers have been responsible for bringing cases that have truly changed lives. They have challenged large corporate and public bodies such as local authorities, hospitals and prisons, and the results have been of a much wider benefit to our most vulnerable in society: for example Mark Neary’s long battle with Hillingdon Borough Council to have his son returned home. The winner of the Outstanding Achievement Award was Elkan Abrahamson, the lawyer instructed by Anne Williamson, who persuaded the government to reopen the Hillsborough Inquest after 25 years. What more can I say?

Jess and I often act for those who may not have the capacity to litigate or to make their own decisions about their health and care needs. Unless a person is subject to a DOLS authorisation all legal aid is means tested. This means that many, especially elderly people who may own their own house or have savings above £8,000 are simply not eligible. Court proceedings are prohibitively expensive and £10,000-£20,000 would be considered reasonable for Court of Protection health and welfare proceedings. Who will be that vulnerable person’s voice in court? Jess discusses the question in her blog post “Transforming Legal Aid: restricting access to justice in the Court of Protection”.

Clarke Willmott is delighted to have been awarded Legal Aid contracts to provide community care legal advice in our Bristol and Southampton offices. This means we can give free legal advice to those who are financially eligible on community care and mental capacity matters. Our right to a fair trial (ie any court proceedings) goes back to Magna Carta and is now enshrined in Article 6 of the European Convention on Human Rights. The Legal Aid budget is tiny and the UK is one of the richest nations in the world so surely we can afford to ensure that there is proper access to justice, especially for our most vulnerable. Legal Aid should be a national treasure of which we should be proud, not the pariah that it is made out to be.

If you would like to discuss any health or welfare law issues, please contact Joanna Burton or Jess Flanagan.

Lasting Power of Attorney – a few things to be aware of

Lasting Power of Attorney (LPA) – An Introduction

A Lasting Power of Attorney, or LPA, is a legal document that allows you to appoint a person, or persons, to make decisions regarding health & welfare and property & financial matters on your behalf.

In order to make an LPA you must be aged 18 or over and have the mental capacity to appoint an attorney to manage your affairs on your behalf.  There are many reasons for making an LPA and some of these have been discussed in our previous blog  ”G8 Dementia Summit 2013: time to consider a power of attorney?“ written by Anthony Fairweather (Professional Deputy).

Signing the LPA

When you have decided who to appoint as your attorney or attorneys, the LPA must be signed in a specific order.

The donor (the individual who is making the LPA) signs first.  The LPA must then be signed by a Certificate Provider, who signs to confirm that the donor has the mental capacity to make the LPA and that there is no fraud or undue influence being exerted on the donor.  The Certificate Provider is either a professional who has knowledge of the Mental Capacity Act, or someone who knows the donor well.

Finally, the LPA is signed by the attorneys and replacement attorneys who will manage the donor’s finances or make decisions on their behalf.

In order to avoid complications and to enhance the efficiency of processing the LPA, all parties can sign and date on the same day.  If any of the individuals are unable to sign on the same day, the LPA can be signed separately, or on different dates, but it must be signed and dated as indicated in the above order to avoid rejection by the Office of the Public Guardian when it considers whether the LPA can be registered.

Details of the first two attorneys and/or the first replacement attorney will be on the LPA form. If you are appointing a third attorney, or more than one replacement attorney, their details will be given on a separate “A1 Continuation Sheet, which is usually attached to the back of the LPA form.   This sheet must be signed by the donor and dated on the same date as the LPA form, and it is important that this is not overlooked.

Amending the LPA

We do not recommend that you amend a completed LPA as the Office of the Public Guardian can be very strict upon considering any alterations. If there are any major amendments to be made the best way to do this is to complete a fresh copy.

If only very minor alterations are required, such as minor spelling mistakes, you may cross through the error on the form and write the correct wording next to it. Please make sure that the amendments are initialled by the person who made the amendments, as well as the person witnessing their signature. This is a vital safeguard to avoid abuse of the powers.

Once the completed LPA form has been sent to the Office of the Public Guardian for registration no more amendments are allowed. If you wish to change the LPA after it has been submitted, you will have to complete a new one and incur the cost of a registration fee that is usually non-refundable.

Certificate Provider

Care should be taken when considering who to nominate as the certificate provider.  In particular, you must be aware that this cannot be a close family member. The Office of the Public Guardian has refused to register a LPA where the certificate provider was the fiancée of the donor’s child. However, any other friend, colleague or neighbour who has known you for over two years can act as your certificate provider, but please make sure that the certificate provider indicates how many years he or she has known you and also in what capacity.

It is often advisable for a professional certificate provider to certify capacity if the donor has a diagnosis of some form of mental impairment, such as dementia.

Certifying copies of the registered LPA

Banks and financial institutions will not accept a copy of a registered LPA unless it has been certified as an exact copy on each page of the document. Contrary to popular understanding, copies of a registered LPA do not have to be certified by a solicitor. As long as the donor has mental capacity, he or she can certify the document. If you choose to do so, you must certify every single page of the copy with your signature and the date with the words ‘I certify this as a true copy of the original’.

More general information regarding Lasting Power of Attorney can be found on https://www.gov.uk/power-of-attorney/overview; and detailed information regarding preparation and registration of a Lasting Power of Attorney is provided by the Office of the Public Guardian  here.

If you would like specific guidance and assistance in respect of choosing your attorneys, or who to approach as certificate provider, then please contact Anthony Fairweather at Clarke Willmott on 0845 209 1265 for further information.

Court of Protection: Tax issues for Deputies

There is not much that comes to mind when I think of Gary Barlow and the Court of Protection in the same breath, except perhaps the issue of tax.

Mr Barlow is having his own trials and tribulations having reportedly become involved in a tax scheme that HMRC is not that keen on.  He may have more tax to pay.

And that is very often the situation I find when I take over the affairs of someone who has lost mental capacity.  After being appointed as Deputy I will undertake an audit of investments and look at what steps have been taken on the Patient’s behalf.  One step that is routinely overlooked is lodging tax returns.

There are a number of situations when this can arise.  It is often the case that a financial deputy makes an application to become the financial deputy because they have little choice.  If there is no Lasting Power  of Attorney in place someone has to step in to try and sort out their loved one’s affairs.  There will often be a trigger event – a house needs to be sold, care funding resolved.  Our financial affairs are not always in apple pie order.  If you suddenly have to sort out someone else’s, even if it is a family member, it can be challenging.  I find submitting a tax return is something that can often slip through the net.

A Deputy has to do a return annually to the Office of the Public Guardian. It can become confusing as to why another return needs to be done.  Nevertheless, it does.

Perhaps a more difficult area involves Patients who have received personal injury awards.  Some income streams are taxable and others are not.  For instance, a periodic payment is not taxable but interest from the Court Funds office is.  When the Court writes to the Deputy and provides a statement it says on it that, if you do a tax return, this interest may need to be declared. I often meet families who say, well, John never has done one so we didn’t know we had to do it.

Sadly, there are many times when a financial deputy may be less inclined towards the financial interests of the Patient and more concerned with their own inheritance.  Actually not paying tax becomes a deliberate act.

So what should a financial deputy do to comply with their duties to HMRC and the Court of Protection?

  1. Take advice. The Court of Protection does not expect us to be able to prepare a tax return but it does expect us to take advice. If you are not sure, you could ask a tax expert like Carol Cummins  who works in this area.
  2. If in doubt ask HMRC.  If you complete a 64-8 and send it in with your Deputy Order, HMRC will advise you as to whether a return has been done previously and if one needs submitting.  Regardless of whether they say one is needed though, you still need to review the tax position annually as you are responsible for the self assessment of any liability or claiming any refund due.
  3. Don’t put your head in the sand – the issue will not go away.  HMRC can go back 20 years in the most extreme cases and can even do this after the Patient has died.  As the Patient’s legal representative you are responsible for the tax compliance.  If you get it wrong penalties of up to 100% of the unpaid tax and interest may be due.
  4. If you find you need to make a disclosure for past years, penalties can be significantly reduced (possibly down to 10%) where you make a timely, full and voluntary disclosure of the issue and make payments on account of the tax due as soon as possible.

As I say, if in doubt take advice.  It is one of those areas along with investments, pensions (and checking nominations) that otherwise might keep you awake at night.

If you need any help, feel free to contact me.

Deprivation of Liberty: Safeguards, not imprisonment.

In March 2014 The House of Lords Select Committee  provided their report on the implementation and effectiveness of the Mental Capacity Act 2005 (MCA).  We have posted on this elsewhere in the blog. Overall the MCA  as a piece of legislation was well regarded by professionals, practitioners and service user interest groups save for two aspects: the understanding and implementation of section 2 (the test for capacity) and the Deprivation of Liberty Safeguards (DOLS) provisions of Schedules A1 and 1A.  Indeed the House of Lords has recommended that the DOLS provisions be repealed as soon as is practicable and replaced with provisions that properly protect P (the patient or person with whom the Court is concerned) and that are in line with the principles of the MCA as set out in section 1.

In my experience P has often regarded the DOLS provisions as a detaining instrument, as have the managers of the care homes and the social workers working with them.  They are not.  They are intended to protect P’s rights under Article 5; that is if the circumstances are such that P is deprived of his or her liberty then that deprivation must be lawfully authorised (by way of Schedule 1A MCA  if P is in a hospital or care home, or by the Court if they are not).  Also just as detention under the Mental Health Act can be challenged through the Mental Health Tribunal so a DOLS Authorisation can be challenged through the Court of Protection (both with non means tested legal aid available for legal representation).

Depriving a person of their liberty is very serious.  It is one of our most ancient rights and goes back to the Magna Carta, which celebrates its 800th anniversary next year.  A writ of habeas corpus: ‘Give up the Body’ can still be applied for to obtain the release of a person wrongly detained.   Where a writ is obtained and the person is found to have been wrongly detained (perhaps in hospital under the Mental Health Act or in an immigration detention centre, police station or even prison), damages, and quite substantial damages, can be sought.

It is precisely because depriving a person of their liberty is so serious (even when it is in their best interests) that local authorities should ensure that care assessments and care plans are up to date and properly implemented at the time when an application for a Standard  DOLS  Authorisation is being sought or renewed.  The Supervisory body should carefully scrutinise all six assessments including the mental health and mental capacity assessments often provided by psychiatrists.  In my experience the mental capacity assessments provided in DOLS Authorisations are often woefully inadequate and certainly show no attempt by the practitioner to comply with section 2 MCA.  Indeed the form is so short that it neither prompts nor encourages the mental capacity assessor to comply with section 2.

In the Best Interests Assessor’s assessment there should be clear evidence that all options for P have been considered to ensure that P is being deprived of his or her liberty as a last and only resort. A DOLS Authorisation often follows immediately after P has moved from his or her own home into residential care.  Would the risk of harm to P have occurred or been as serious as alleged if P had remained at home?  If it was a resources issue, ie that  caring for P at home would have cost the local authority more than residential care, is it a proportionate difference in cost given that a move into residential care may result in depriving P of his or her liberty?  Is the deprivation proportionate and necessary as well as in P’s best interests?

It is important that the most vulnerable in our society have their rights properly protected.   In my view, there is currently no incentive for local authorities to get this right:  there is no penalty for the local authority and no substantive remedy for P if a DOLS Authorisation is slipshod, or if the proper authorisation of a deprivation of liberty is delayed or not sought at all.

If the cost of getting things wrong, in terms of cash and reputation, was greater than getting it right, then we might start seeing some improvements.

For further information about mental capacity or to discuss any issues regarding welfare law, please contact Joanna Burton or a member of our Court of Protection team.

 

Court of Protection: Clarke Willmott seminar – In a Gilded Cage: Liberty after Cheshire West

On 22 April 2014, the Court of Protection team presented a topical seminar on the Deprivation of Liberty Safeguards entitled, ‘In a Gilded Cage: Liberty after Cheshire West’.

Simon Burrows, junior counsel instructed by the Official Solicitor to represent P in the Cheshire West case, presented on the meaning, effect and ramifications of the Supreme Court decision for those who come under powers of the Mental Capacity Act, DOLS, and the Mental Health Act, and those advising them. The seminar attendees were Independent Mental Capacity and Mental Health Advocates, private client lawyers, health and social care practitioners and personal injury case managers. This was a popular event and well received by everyone who attended.

We particularly thank Simon for his interesting comments.

The purpose of the seminar was to try to answer some questions arising from the Supreme Court judgment in the combined appeals of Cheshire West and P & Q: [2014] UKSC 19: On appeal from [2011]EWCA Civ 1257; [2011] EWCA Civ 190. The Supreme Court Judges, led forcefully by Lady Hale of Richmond, re-defined the test for ascertaining whether or not a person without capacity to consent to their living and care arrangements was deprived of his or her liberty. Joanna Burton has dealt with the judgment in detail in her post Court of Protection: the Supreme Court’s test for Deprivation of Liberty.

In his judgment Lord Neubeurger acknowledged the need for clear guidance and a focused test for deciding whether the circumstances of a particular case or individual involve a deprivation of liberty within article 5(4) of the European Convention on Human Rights (ECHR), or merely a restriction falling outside.

Lady Hale thankfully provided us with an ‘acid test’, which is to ask whether an individual is free to leave and whether they are subject to continuous control and supervision. But what do we think ‘not free to leave’ means, and how should this test be applied in practice? Most of those attending the seminar work with the Mental Capacity Act on a regular basis. They had been following the case and had read the judgment so there were a lot of questions from the floor.

Simon answered them all knowledgeably. The general message was that most individuals who lack capacity to make decisions concerning their care and treatment and are placed in an environment where they are not free to leave (without an escort) and are under constant control and supervision, will be deprived of their liberty. Their placement may be in their best interests, but nonetheless, it must be authorised.

We are all concerned about the pinch that Local Authorities and other statutory services will feel as a result of this decision, not least the Court of Protection, which will have to authorise circumstances that amount to a deprivation of liberty in all placements other than care homes and hospitals. Simon suggested that the ruling may encourage assessors to look more closely at whether someone does in fact lack capacity or not. I would really like to see this happen more frequently; it is, after all, the starting point.

Last week, Sir James Munby, the President of the Family Division and Court of Protection, made reference to the ‘rush of cases’ that are likely to come about as a result of the judgment. The Telegraph reported that he had doubts over whether the Court of Protection would be able to cope with the expected rush of cases and he warned that: ‘Councils could also face an “immense burden” from the cost of the extra legal cases…I want to try to bring some measure of administrative order and proper process into play in the light of the ramifications of the recent judgment of the Supreme Court.’

Since the seminar, I have been informed that the President is looking at drafting some guidance in respect of applications to authorise any deprivation of liberty where an individual lives in a supported living, or family home. We are yet to see what it might look like, but I hope this is the ‘administrative order and proper process’ that the President has spoken about. The message from the court is that they are aware of the implications arising from the Supreme Court judgment and the guidance would set out what information and evidence the court would need to make an application. It is encouraging to hear that the desirability for a straight forward procedure should not take away from the need to ensure that the voice of individual concerned is heard and that their rights to a speedy review of their deprivation of liberty and right to a fair trial are protected.

The advice to Local Authorities from the court is to try and hold back on any applications that could wait, but if necessary, to use the standard application forms for a personal welfare application.

I am hopeful that the court will not lose momentum on this, and the Guidance will be issued as soon as possible. The next issue for practitioners to grapple with is the availability of legal aid for those who are deprived of their liberty in a placement other than a care home or hospital. Currently, those deprived of their liberty pursuant to a Standard Authorisation have access to non means tested legal aid to fund representation. This is not the same for those in supported or independent living arrangements, as this is currently a different application to the court and not one which carries with it access to non means tested legal aid. The Ministry of Justice have some thinking to do…

Thank you to everyone who attended the seminar and made this such an exciting event to have been part of.

Court of Protection: respect for religious views

Re P (Capacity to tithe inheritance) [2014] – having respect for P’s religious views has been upheld by the Court of Protection

This case was brought by a local authority Deputy for Property and Affairs for a 40 year old man (“MS”) with schizoaffective disorder.  Evidence was submitted that MS believed he was a “messianic figure” with delusional religious ideas, including a firm belief that he was the first prophet outside the Godhead: only the Father, Son and Holy Ghost were greater beings than him.

MS wanted to “tithe” 10% of his inheritance to the Church of Latter Day Saints.  Tithing is the practice of giving one tenth of one’s earnings or annual farm produce for religious purposes and is referred to in the Bible.  The amount MS wanted to tithe was around £7,000, which the local authority said was about a year’s worth of MS’s living expenses.  If he gave the tithe, then he would be left with around six years’ worth of money if he continued to spend at the same rate.

The local authority applied to the Court of Protection to determine whether MS had capacity to tithe and if not, whether this arrangement should be authorised in his best interests.

District Judge Eldergill considered evidence from MS’s mother who thought he could be under pressure from the church to donate his money and that he remained “very vulnerable financially.”

The local authority pointed out that making this tithe would mean that MS’s capital would drop to the level at which he needs to claim state benefits “some 56 weeks sooner than will be the case if no donation is made.

District Judge Eldergill rejected these submissions. He said:

When people with finite resources give money to charity […] they are not required to calculate the effect of their gift on future state benefit claims or to regard themselves as precluded from acts of charity.”

There was conflicting evidence from MS’s consultant psychiatrist, Dr M, and a Special Visitor (Dr T) requested by the Court.  The judge preferred Dr T’s evidence that MS’s desire to give his money to church was “part of his religious beliefs but not in my opinion part of his delusional belief system.”

MS acknowledged in his evidence that he had a “Mount Everest of a credibility problem” to surmount, but told the Court he prized his independence and autonomy and his decision to give a tithe to the church (even if he was not a member) was “both rational and Biblical.”  MS did not consider himself to be exploited and believed that charitable giving was his prerogative.

District Judge Eldergill set out  the law relating to mental capacity and gifts, highlighting that “whether an individual has capacity may depend in part on the nature and complexity of the decisions to be made.” He said “the fact that a person has a grandiose belief with a religious content does not demonstrate that the whole of their religion is delusionally-based and caused by mental illness.”  In the judge’s view MS had capacity to tithe and had litigation capacity (contrary to the opinions of both expert psychiatrists).  District Judge Eldergill said that medical evidence is only part of the evidence, and that evidence from other professionals, conduct observed by the court and submissions by the individual were also important.  He thought the issues in this case were not particularly complex, MS understood them well and he presented his case very ably.

DJ Eldergill said that even if he had found that MS lacked capacity, he would have authorised the tithe on his behalf as being in his best interests.  The law has always sought to show respect for religious belief and freedom of consciousness and the judge praised the local authority deputy for bringing the application, as they had been respectful of MS’s “dignity, wishes and feelings.”

This is another transparent judgment from the “Secret Court” showing how carefully the judge will analyse the evidence before him and consider the importance of P’s own views, wishes and feelings.  As District Judge Eldergill commented “good reasons are required to interfere in matters of conscience and spiritual belief,” and in this case the Court did not think it necessary to interfere.

For further information about Court of Protection issues, please contact Alison Lamont or a member of our Court of Protection team.

A day in the life of a professional Property & Affairs Deputy: Investments

Caroline Featherby is a trainee solicitor who assists with applications and administration on behalf of our Court of Protection team. In this series of posts Caroline looks at the processes involved in an ongoing deputyship, reflecting on the hurdles faced by the team as well as the life changing decisions they make to support people who are unable to manage their own affairs. 

Where a patient (“P”) has significant capital, received either by way of a compensation award or, for example, through the sale of a property, it is the role of the Deputy to consider whether it is appropriate for investments to be made out of the capital.

The first step is to prepare a cash flow forecast for P, reviewing all incoming and outgoing payments.  The deputy can then calculate how much money will be required for P to continue living comfortably, before releasing a sum of the capital to be invested.

P’s individual requirements will have an effect on the level of risk that can be taken, so the family and in some circumstances, P, will meet more than one Investment Manager and/or Financial Planner to consider a strategy and the investments that are appropriate for P.    Important issues include:

(1)    whether the money invested needs to grow and by what margin;

(2)    whether the funds will need to be accessed in a year, two years or five years to provide for future expenditure such as care costs; and

(3)    whether a level of income needs to be generated to feed back into the deputy account. If this is not required the income can be re-invested and this will in turn create further income.

A formal report is generated setting out the comments, observations and recommendations of those instructed.

Where the monies are held in the Court Funds Office, the Deputy submits the advice and requests that the required funds are paid into the deputy account to be invested accordingly.

In many cases the monies are divided into separate pots:

(1)    an investment might be made into the stock market and will be managed on a daily basis, reacting to market fluctuations;

(2)    cash is invested in deposit bond accounts with various institutions at a level that doesn’t exceed the Financial Services Compensation Scheme, currently £85,000 per institution.

One of the most significant responsibilities of a Property and Affairs Deputy is to seek relevant and accurate professional advice when required. Investments are complex, particularly in the current uncertain economic climate, so choosing the right strategy at an early stage will have a significant impact on the longevity and potential growth in P’s capital.

Clarke Willmott partners Anthony Fairweather, Martin Pettingell and Elizabeth Smithers are based in our Bristol office and act as Professional Deputies for more than 50 clients. Anthony Fairweather is a panel deputy at the Court of Protection.

…to be continued.

Appointing a Court of Protection deputy

I act as a Court of Protection deputy for many individuals who need help in managing their financial affairs.  It can be a long and confusing process making an application to appoint a deputy and a solicitor or family member needs to complete a large number forms.

There are three key pieces of information the applicant will require:

  1. Family members – the forms require the applicant to complete the details of the Patient’s family including their addresses
  2. Medical report – a particular form needs to be completed by a doctor or social worker confirming to the court of protection that the Patient has lost capacity
  3. Assets and possessions – a full itemised list including bank accounts, property, shares, policies etc needs to be completed.

Once all the forms have been completed they need to be sent to the court of protection whereupon a Judge will consider the request to appoint the deputy.  At that stage the application documentation is sent out to family and possibly friends.

What if any of them disagree?  For instance, there can be arguments over who should be the court of the protection deputy?   Should it be the applicant or another family member? Are there issues over whether the Patient does or does not have capacity?

If there are contentious issues then, at that stage, the Judge is likely to ask for a hearing to take place to decide on the best course of action.  It will be for the Judge to decide.  The Judge may suggest that the parties mediate to try and find a solution.  As a panel deputy of the Court of Protection there are situations where I will be invited to act as Deputy as an independent third party.

The most important thing to remember is that it takes time to complete the forms and have the matter decided.  If no hearing is needed it can take at least 8-12 weeks even in situations when a family may wish to take urgent steps.

If you would like any help or advice about appointing a Court of Protection deputy please contact me or a member of our Court of Protection team.