Tag Archives: Court of Protection

Court of Protection applications

6 Dec


Court of Protection applications


What do the Court do?  The Court of Protection have one remit, that is to make decisions on behalf of people who lack capacity to make them for themselves.  If they are found to have capacity on any particular issue, the Court lacks jurisdiction.


They make simple deputyship orders for people who lack capacity and did not make LPAs before they lost it or perhaps the person has always had an impairment.  These are relatively straightforward applications and within the Court, might be considered by a senior administrator rather than a judge, as they are considered sufficiently straightforward.


So, what are the more complicated matters they will deal with?  They make decisions that involve and an attorney or deputy that is considered “self-dealing”, which is when the person in charge of the money wants to purchase or sell an asset to themselves.  It could also be about investing money in the attorney or deputy’s business, something where the transaction has a financial link to the deputy or attorney.


The Court also want to look at requests for gifting.  There have been a number of cases recently following which the Court has tried to provide guidance on what is acceptable gifting and what isn’t, which helps with what needs to be reviewed by the Court as being something that is more than just basic modest gifting.  The Court will grant orders for gifts more than just something very basic, but there needs to be a good reason to do so.  The Court needs to be persuaded that it in the best interests of the person whose money it is, to give it away and is therefore not available to them for their own needs.


The Court will deal with fraud cases, where someone has used the money inappropriately and was way beyond their authority to use the money or they have simply stolen it.  The Court will seek to recover the money for the person if they can and will also replace the attorney or deputy with someone more suitable to manage their affairs.


The other thing that they consider is disputes, which covers all kinds of things from financial to health decisions and some issues that cover both.  This has arisen because two sides don’t agree about something and usually each of them thinks that they are right and that what they want is in the best interests of the person.  The Court will hear both sides and make their ultimate judgement.


These applications that are more than just simple deputyship for finance can be difficult to do, they require lots of forms and the arguments have to be structured in a way that will make a difference to the Court.  There is legislation that deals with people who lack capacity and the Court needs to be persuaded that this legislation is not sufficient to deal with the current situation and something different needs to happen.  There is often a long delay between submission of the forms and the order being granted, so if there is a requirement for the case to be seen promptly, then this is another challenging aspect of these kinds of cases.




Managing the affairs of someone else – A professional appointment – financial affairs

11 Oct


Managing the affairs of someone else – A professional appointment – financial affairs


Following on from my last blogs about managing the affairs of another person, what should the person do if they have no-one to do that or if they don’t get on with their family?  They can appoint a professional like me and I act for a number of individuals in some cases for both the finance and health and welfare.  I can also be appointed by the Court to be deputy (which is similar to the authority of an attorney), but these appointments are usually for financial affairs only.


My appointment is no different from the appointment of the family member, with the one exception that I charge a professional fee for the work that I do.  How much the fee is, depends on the complexity of the matter and in particular where they live, as if they live in care and they require the payment of their care fees and an annual welfare visit, the cost is far less than someone who lives in the community and due to issues arising I have to visit every few months.


I have a duty to maximise the estate for the benefit of that person, which means that I have an obligation to ensure that the funds are appropriately invested to ensure that there is an income.  I need to give consideration to the income and how the money is being spent, as someone who has only a couple of hours care a week or even a day, will spend less money than someone who has a full time live in carer.  How the estate should be managed has to have all the relevant information taken into account so that a bespoke strategy is achieved.  I even have to consider how much money is kept in one bank, as if the bank goes bust only the first £85,000 is insured and the rest could be lost.  I have to consider moving the excess to protect the client, if the worst happens.


I might be asked to make gifts and I have to consider whether that is reasonable.  I might have to take control of high value assets, so jewellery might need to go into a safety deposit.  If they have a safety deposit box, then I will need to know what is in it.


It is also useful to know what is in the Will, so that I don’t sell anything that is specifically gifted in their Will, such as jewellery or property.  If the donor leaves their house to someone and I’ve sold it, the disappointed beneficiary will not be happy with me and this is a circumstance that a statutory Will might be appropriated, so that the Court of Protection will grant a new Will giving a share of the estate that equates to the value of the property to that beneficiary.  So if there is a house worth £200,000 and cash worth £100,000, when the property is sold, whoever receives the cash will get £300,000 if there is only cash, but the Statutory Will would give 2/3 to the person who would have had the property and 1/3 to the person who would have had the cash.


My overall aim is to ensure that the wishes of the person are carried out as far as is possible to achieve, so if the client doesn’t want to go into care and it is possible to arrange their care in such a way to achieve that, then I do so.  If their primary concern is to be safe and cared for, then admission into care in some circumstances might be the right decision for them.  How I deal with their money depends on what their financial needs are, what their income is and what their capital is.


The firm that I work for has to insure the client’s money as part of their liability insurance, so within the firm there are safeguards to ensure that the clients’ money is safe from fraud or theft, including from me!  It is for this reason that I would not act with a co-attorney for financial matters, as I remain also responsible for the running of their affairs, including the fraud by co-attorney.


Having authority over another’s affairs is a big responsibility, which I take very seriously to ensure that the person is cared for as best as is possible to achieve and in the way that they want.


Managing the affairs of someone else – Financial Affairs

20 Sep


Managing the affairs of someone else – Financial Affairs


Following on from my last blog about managing the health and welfare decisions of another person, how do you manage the financial affairs of another person?


The starting principles are the same as with the health and welfare, what did the person themselves do before they became ill?  This should form a very important part of your decision, but you are not there to make their decisions, you make your own.  The question is what is in their best interests and all aspects of this issue should be taken into account when making this decision.


With regards to finances though, there are some rules around what can and cannot be done, as access to money puts the person at risk of fraud and theft.


Firstly, the attorney and donor should not have mixed finances, the funds should be clearly separated out into different accounts, so what money belongs to whom is clear.


If there is a large sum to invest, such as the proceeds of the sale of a property, then the investment strategy should be undertaken with the advice of a financial advisor, who will carefully look at the situation and work out what the investment risk profile of this person should be.  Depending on the circumstances, including the health issues and life expectancy of the donor and the amount of money involved, there could be lots of different scenarios to consider in financial terms.


The donor should not make investments into the business of the attorney, to provide financial support for them.  This is considered gifting, rather than investing and there should be a great deal of care taken over gifting.  This is also an issue of mixed finances, which again, should not happen.


Gifting is a big issue and I get asked lots of questions about this.  Can the attorney make gifts?  There is no simple answer, the phrase that is used regarding gifting is that it should be “on occasion” and “reasonable in all the circumstances and in particular to the size of the estate”.


What does on occasion mean?  It is birthdays, Christmas, graduation, house warming etc, gifting should be done at these specific times for specific religious, family or cultural reasons, not just because someone is short of money or has seen something in the shops that they fancy!


What about “reasonable in all the circumstances”?  The gift must be one that the donor either did or would have made had they been well.  There is no reason that they would gift anything to an estranged family member, if they hadn’t done in the years preceding their illness.  A plant or toaster is a suitable house warming present, the gift itself must be suitable for the occasion.


The other key part of the phrase about the gift being reasonable, is that it must be reasonable in particular to the size of the estate.  The Court of Protection has said that if the estate is over the value of the nil rate band, which is currently £325,000, then if there is nothing unusual about the estate, then the attorney can give away the £3,000 per year that is exempt for inheritance tax.  Where the size of the estate is smaller, part of the consideration will be what gifting that person made when they were well, such as £10 for the birthdays and Christmas of their two children will cost £40 per year, which would be reasonable for a modest sized estate.  When in doubt, the emphasis is to be less generous rather than more or to not make the gift at all.  Any gifts larger than the £3,000 discussed above or loans to the attorney would need specific Court approval.  The Court’s general view is that money is for the donor and not for anyone else, so there needs to be a good reason to gift it, but thinking fondly of someone is considered a good reason.


Managing the affairs of another person can be challenging, often because it comes at a time when the family is in distress anyway, because their loved one is unwell.  I am happy to provide support to those attorneys who need some advice.


Lasting Powers of attorney – practical issues – Property and Financial Affairs

15 Feb

Lasting Powers of Attorney – some practical issues


There are two types of Lasting Power of Attorney, one dealing with financial affairs and the other dealing with health and welfare decisions.  In this blog, I’m going to give some practical examples of how the financial one works.


It can work, if you are well, but have a physical impairment and cannot get to the bank to deal with your financial affairs, at this time, your attorneys should act on your instructions only.  They are effectively doing your running around.


If and when you ever lose capacity, your attorney will act for you, but they make your decisions, so it is important that you trust them.


Unless restricted, the LPA will cover everything you own, which includes all those lovely sentimental things that you own, as well as your cash and house.  Make sure your attorney knows your intentions for all of it, the sentimental stuff is where people often row!


So what if you don’t have an LPA, well if you can’t get to your money, then unless you’ve made arrangements no-one can, so your bills won’t get paid.  If you live at home, your repairs or new equipment can’t be purchased, which will impair your ability to successfully live at home.  If you are in a care home, then your fees won’t get paid and the home will not want you there.  Often the Local Authority will step in on an interim basis to meet your fees in the short term, but they will want reimbursement and if necessary will take on deputyship themselves (which is like a power of attorney, but granted by the Court of Protection), which is a far more expensive option.


So what can your attorney do with your money?  It is meant to be used for your benefit, so making modest gifts probably is for your benefit, if you have always made them, you could appear ungenerous if you stopped giving Christmas and birthday presents.  However the power to make gifts is very limited, it must be “on occasion”, such as birthday, Christmas, wedding etc and it must be reasonable in all the circumstances, including the size of the estate, which means that the attorney cannot give themselves thousands of pounds just because they fancy it! Or at least they shouldn’t, which is why you should trust your attorneys.


They can spend the money on you, on your needs, to ensure that you are housed, clothed, fed and cared for.  And beyond these basic needs, depending on how much money you have, they may also buy for you some luxuries that you like, such as a holiday, if you are capable of travel.  Whatever they spend your money on, it should be with you in mind, not just what a generic person like you would want.  Some people love chocolate, others are allergic, so whatever your guilty pleasure is, if you have enough money for it and there is no clinical reason why you can’t have it, your attorney should purchase this for you!


If you have any questions about LPAs, please contact me.

Withdrawal of Life Sustaining Treatment

4 Jan


Withdrawal of Life Sustaining Treatment


There have been a couple of cases coming to Court recently regarding the withdrawal of life sustaining treatment.  Court cases are always stressful and can be very expensive, so in recent cases, the question has been asked as to whether it is necessary to go to Court in every case.  These kinds of cases arise where there is no attorney under a Lasting Power of Attorney, appointed to make decisions about life sustaining treatment.


There is practise direction (legal guidance for the Court process), that indicates that it should, however this practise direction is being withdrawn in December and not replaced, which effectively means it’s being deleted!


The Court considered lots of things and made it clear that every decision to withdraw life sustaining treatment is always unique and case specific.  They also said that every person is entitled to the rights under the European Human Rights Convention and in particular they are entitled to Article 2 (right to life) and Article 6 (right to a fair trial).


One of the first cases of its kind was the case of Anthony Bland, who survived the Hillsborough disaster, but in a permanently vegetative state.  The NHS Trust caring for him applied to the Court for permission to withdraw life sustaining treatment in 1993, the order was granted, as it was decided in the circumstances it was in his best interests to do so.  At that time, the Court’s view was that all such cases should be considered by the Court.  As time has gone on and medical advances have improved, there are more very poorly people being kept artificially alive with the use of medicine and in particular artificial nutrition and hydration.


So what has the Court decided?


It is still an individual decision relevant to the circumstances of each case.  However the Court has also decided that it is not always necessary to apply to the Court for a decision to withdraw life sustaining treatment where all parties are in agreement, including the family and all clinical team treating the patient.  They must be sure that there is no prospect of recovery and that it is in their best interests to withdraw the treatment.  They should also attempt to find out what their wishes would have been, had they been able to express them.  There should also be no doubts or concerns about the decision, otherwise, the case should be brought to Court.


So what does this mean?


That life sustaining treatment might be withdrawn without having to go to Court, as long as there are no concerns about the decision and everyone is in agreement.  However these recent cases are not guarantees that the matter will not be brought to Court, just that it might not be!


The other key point is that it is best practise, a lot easier and less stressful to grant a Lasting Power of Attorney for Health and Welfare, appointing someone you trust, who would be able to make this decision on your behalf.  One of the cases was for a 52 year old man, who had a cardiac arrest, it was not possible to resuscitate him for 10 minutes, leading to permanent brain damage and he would need care for the rest of his life.  As long as your proposed attorneys are over the age of 18, there is no time when it is too early to do this, then they can be stored until or if they are every needed.


If you need help or advice regarding LPAs, please contact me.

Deprivation of Liberty – Part 6

15 Dec

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DOLS – Part 6


Following the Cheshire West case in 2014, where the Supreme Court, which is the highest Court in England and Wales, decided that if someone who is cognitively impaired is “under continuous control and supervision”, then they were deprived of their liberty and therefore the deprivation should be authorised.  This implied that it would lead to a huge increase in the numbers of cases for authorisation by both the Local Authority, which should authorise cases in care homes and hospital and the Court of Protection, which should authorise deprivations elsewhere.


The final case that I will look at is Re X (Court of Protection).  The president of the Court of Protection wanted to have brought before him a number of different cases, that had similar issues, so that he could answer the questions in one “supercase”!  By the time the Re X case came before the President, even he did not how many individual cases were involved!


The president created a list of 25 questions, which he hoped he would answer and in doing so would form the basis for a streamlined process of applications to the Court of Protection.


The case was referred to the Court of Appeal.  The Court had concerns about this list of 25 questions and whether the president had the jurisdiction to hear all of these various cases and answer his list of questions.  In the end the Court decided that he did not have jurisdiction.


One of the questions that the Court of Protection asked was whether the person being deprived of their liberty should be joined as a party to the case, which means that they would have the right to be heard by the Court, either directly or via some carer / advocate / family member etc.  The Court would always join the person where the matter was controversial, as in these circumstances, the Court would always want to hear from the person, but what about in cases that were not controversial or contested?  The Court of Protection, in looking at a streamlined process decided that they didn’t have to be joined, which meant that they still might be, but didn’t have to be.  The Court of Appeal overruled this and said that they should always be joined, because if someone is being deprived of their liberty, they should be involved.  Being deprived of their liberty is what happens when people are convicted of a criminal offence and sent to prison, so to deprive someone of their liberty when they are cognitively impaired is a huge issue and that person should be involved in the process and hence joined as a party.


What has come out of this is a new Court of Protection process, with a new Practise Direction.


There have been lots of cases following Cheshire West, and many have found that a person is not deprived of their liberty, but as the Supreme Court is the highest Court, none of these cases have overruled Cheshire West, which therefore stands as case law.


The Law Commission is looking at the whole issue of deprivation of liberty and has said that it is “deeply flawed”!  One of the ways in which it is intended to reform it is to change the name to “Protective Care”, which sounds so much more appealing than Deprivation of Liberty!


During the process of reform, the Law Commission undertook a consultation process, which is now closed and a final report and draft bill are due to be released in December 2016.

Deprivation of Liberty – Part 5

1 Dec

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DOLS – Part 5


There have been a number of cases following the Supreme Court ruling in the Cheshire West case in 2014.  The key phrase that came from this case was the issue of whether someone who was cognitively impaired was under the “continuous control and supervision” of their carers.


The next case that I will look at is W City Council v Mrs L, the details of which are:

Mrs L was 93 and had dementia.  She had lived in her house for the last 39 years.  She had 2 falls in 2013, the first time injuring her hip, which required an operation.  Once she became increasingly frail and vulnerable a care package was arranged by the Local Authority.  She continues to live in her own home and gets great pleasure from being able to go out into the garden.


The garden was open originally, so work was done to enclose it due to the risk of her wandering off and there are sensors that automatically switch on at night & off in the morning.  If the alarm went off, her daughter would be contacted and if she were unavailable, then the call would re-route to the emergency services, who would guide her safely back.


Because Mrs L was living in her own home, this case was considered by the Court of Protection and they had to consider whether she was deprived of her liberty.  The Court considered who was providing the care and who would bring her back if the alarm was triggered, which in first instance was her family.  The Court said with this family involvement the deprivation was not “imputable to the state” and in which case she was not deprived of her liberty.


Like many other cases decided after the Cheshire West case, it is arguable that she was under fairly “continuous control and supervision” and although she may be able to leave, she would always have been brought back, so not free to leave completely!