Category: News & Articles

Slee Blackwell lawyer Naomi Ireson reviews recent press reports concerning the Court of Protection.

The Court of Protection is once again in the news, being described as the most secretive court in the land.

The controversy surrounds the case of an elderly attorney who has been sentenced to six months in prison by the Court of Protection.

She was sent to prison after refusing to sign a letter prepared by a judge authorising the return to England of an 81 year old man from his native Portugal against his wishes.

Although the man suffers from dementia, he had travelled to Portugal legally. The UK courts have no power to order his return and he is happily living in a reputable Portuguese care home.

The woman had power of attorney over his affairs. Exercising her powers as his attorney she put his house in Britain up for sale. The sale proceeds would have been enough to cover the fees of the care home in Portugal.

However the local authority in Britain obtained a court ruling that blocked the sale, with responsibility for his financial affairs being passed to the Official Solicitor.

Court orders were also made requiring the man to be brought back to an English care home. However, because he was outside UK jurisdiction these court orders could not be enforced.

A judge then prepared a letter to be signed by the woman agreeing to the man being handed over to English authorities. He warned her that if she did not sign the letter he would send her to jail. The woman refused to be bullied. She said that it was not in the man’s best interests to return to England and refused to sign.

As a result the judge sent her to prison for six months.

Apart from the heavy handed approach, critics of the Court of Protection point to the massive expense of these court proceedings, which may have cost the tax payer hundreds of thousands of pounds without achieving a positive outcome.

The case has led to calls for greater openness in the Court of Protection and answers to the questions that have been raised.

To discuss your Court of Protection issue with partner Naomi Ireson call us on 0808 139 1606 or simply send us an email.

If you would like to know whether you can remove an attorney then call our free legal helpline on 0808 139 1606 or send us an email with details of the dispute.

We are regularly consulted about disputes involving attorneys appointed under a Lasting Power of Attorney. One popular question is, ‘Can I remove an attorney from office?’

The Court’s powers to remove an attorney

The law regulating the removal of an attorney is section 22 of the Mental Capacity Act 2005. This states that where an attorney’s behaviour  contravenes his authority or is not in the donor’s “best interests”, the court can revoke the Lasting Power of Attorney.

Best interests

So what does the term ‘best interests’ actually mean? Section 4 of the Act provides guidance.

It says that in determining a donor’s best interests the donor should be encouraged to participate in the decision making process, even if they are unlikely to regain capacity.

Consideration must also be given to the donor’s past and present wishes and feelings, especially any written expression of wishes that may have been made when they had capacity.

Furthermore, the views of those responsible for the donor’s care are to be taken into account in determining what is in their best interests.

How the court will deal with an application to remove an attorney

Unfortunately there is not a great deal of case law in this area.

 In Re Buckley, an attorney acted under the belief that the donor would have wanted her to invest £88,000 in a reptile breeding business.  The judge however regarded the business as ‘high-risk’, ruling that it was not in the donor’s best interests.

In Re OB, an attorney used the donor’s funds to convert her own property to make it more suitable for living in.  The judge concluded that the attorney was taking advantage of her position and therefore not acting in the best interests of the donor.

The specific facts of each case need to be carefully considered, with an appreciation that ‘best interests’ are to some extent subjective.

Disclaimers

The court can entertain a disclaimer from an attorney. This might be appropriate where an attorney proposes that a dispute should be resolved by appointing a professional attorney to act going forward.

Who pays the legal Costs?

The general principle is that where court proceedings concern a donor’s property and affairs the costs of the proceedings will be paid by the donor’s estate.

However the court can depart from this general rule ‘if the circumstances so justify’.

In considering whether this is justified, consideration is given to a range of factors including conduct and whether someone has succeeded in arguing their case

When looking at conduct, the court will consider whether it was reasonable for someone to pursue an issue and the way in which they have dealt with it

Unlike other legal disputes, in the court of protection a winning party cannot assume the losing party will be ordered to pay their costs.  The deciding factor  is often reasonableness rather than who won or lost. It is therefore important for people to bear this in mind during the course of any dispute.

How we can help

We specialise in court of protection disputes.

If you require free initial guidance on how to remove an attorney or are involved in a dispute regarding a lasting power of attorney then give us a call on 0808 139 1606 or send us an email with details of the dispute.

If you require help with assessing mental capacity for a lasting power of attorney or are involved in an LPA dispute then call our helpline on 0808 139 1606 or send us an email with your details.

Assessing mental capacity for a lasting power of attorney.

When someone makes a lasting power of attorney they must have the requisite mental capacity to do so. Our Court of Protection lawyers are experienced in assessing mental capacity for a lasting power of attorney.

When assessing capacity our specialist lawyers take into consideration the requirements of the Mental Capacity Act along with other legal guidance.

Where mental capacity is in doubt

If there is doubt about mental capacity, a medical expert can be instructed to carry out a mental capacity assessment. Written consent can be given in advance by the maker of the LPA (the ‘donor’) authorising their lawyer to contact their GP or another medical practitioner should the need for medical evidence arise at a later date.

Disputes can arise when capacity is unclear. Where an lasting power of attorney is contested and attempts to resolve the dispute fail, the matter may have to be determined by the Court of Protection.

The functional and time-specific test of incapacity

The Mental Capacity Act does not set out a readily identifiable point at which the donor of an LPA is deemed to lack mental capacity.

The Act has a ‘functional and time-specific’ test of incapacity. This means capacity will vary according to the particular decision to be taken at a particular time.

So, someone could have sufficient capacity to make decisions concerning routine household spending, but at the same time lack capacity to make a far-reaching decision such as selling their home. Furthermore, their capacity to make these decisions may be liable to change; either improving or becoming worse. As a result there may not be one particular point at which a person loses capacity to make all decisions. This can present a challenge to anyone assessing mental capacity for a lasting power of attorney.

The Mental Capacity Act encourages a joint approach to decision making, requiring the attorney and the donor to work together. It is always to be assumed that a donor has the requisite mental capacity to make a decision, unless it can be established that they lack it.

Donors shouldn’t be treated as being unable to make a decision unless all practical steps have been taken to help them do so. If necessary, decisions should be deferred or further assistance arranged; especially with health and welfare LPAs or where it has been specified that a property and affairs LPA will only become valid upon incapacity arising.

Attorneys should act in the donor’s best interests

If a donor does lack capacity to make a particular decision, the Mental Capacity Act requires attorneys to always act in the donor’s ‘best interests’.

The Act contains a checklist of factors that must be considered, including consulting with relatives and carers as well as permitting and encouraging the donor to participate in the decision making process as fully as possible.

How we can help

If you are involved in a dispute involving an LPA or need help assessing mental capacity for a lasting power of attorney you can call our helpline on 0808 139 1606. Alternatively please feel free to drop us an email with your details.

We specialise in LPA disputes, including LPA fraud. If you require help then call us for a free case assessment on 0808 139 1606 or send us an email with your details.

A man has been jailed following a review of his mother’s financial affairs.  Mr Snelling, who was living in North Devon at the time, admitted four charges of fraud by abuse of position following a trial at Exeter Crown Court.  It was alleged he had taken over £41,000 from his mother while in charge of her financial affairs.

In one year alone Mr Snelling went on three foreign holidays, which are reported to have cost in the region of £10,000 – far in excess of his usual spending.

Mr Snelling’s own daughters became so concerned about his spending that they decided to intervene. They took their grandmother, aged 93, to the bank, following which Mrs Snelling discovered that her son had withdrawn £28,520 from one account and a further £13,000 from another.

Mrs Snelling passed away before the trial took place, but her evidence nonetheless struck a chord with the court and led to the guilty plea.

This case highlights the problem of fraud relating to people’s personal finances and the importance of selecting an appropriate attorney (or appointee) to monitor your financial affairs.  The difficulty in this instance was that from the outside, Mr Snelling appeared to be a doting and caring son – an ideal attorney in many circumstances.

So, what steps could Mrs Snelling have taken to avoid a situation like this occurring?

Formally appointing an attorney would have been prudent, but there always remains a risk that an attorney could misuse the power.

The risk of LPA fraud might be reduced by the appointment of a second Attorney, although this is not always possible.

If you are thinking of making a lasting power of attorney, our lawyers are happy to address any legal queries you may have and discuss steps can be taken to protect your finances.

We always explore what appropriate measures might be available to safeguard against LPA fraud.

Clients are encouraged to discuss with other family members or close friends (who are not named as people to be notified of an application to register the LPA) of the existence of the power, their reasons for appointing the attorney(s) and how they would like the power to be used. By doing so it helps guard against the risk of abuse by an attorney. It may also reduce the chances of conflict arising between family members at a later point.

There may be situations where a deputyship might offer more protection than the creation of an LPA, especially where the assets are more substantial or complex than family members are experienced in dealing with and there is no suitable professional to appoint as attorney.

If you are concerned that you, a family member or a close friend are being subjected to financial abuse, then you can contact the Office of the Public Guardian on 0300 456 0300.  Alternatively, our specialist lawyers will be happy to review your concerns and offer guidance on the steps that can be taken.

We specialise in Court of Protection disputes. For a free informal chat about our services, including LPA fraud, please contact us on 0808 139 1606 or simply send us an email with your details.