Category: News & Articles

We specialise in Court of Protection law. You can call our free legal helpline on 0808 139 1606 and speak to one of our specialist Court of Protection lawyers.

The court of protection has launched a new pilot scheme with the aim of introducing more transparency into its workings.

Journalists as well as members of the general public are being given greater access to the court and are now permitted to attend hearings.

Traditionally hearings in the court of protection are held in private rather than in open court.

Safeguards will however remain in place to ensure that the identities of people involved in court of protection cases remain confidential.

These changes follow on from similar reforms in the family courts where hearings have been open to accredited media for the last six years. The experience there has been a positive one and has enabled the public to gain a better understanding of the courts’ work.

The move to a more open court of protection will also see court listings becoming more detailed.

The new Practice Direction – Transparency Pilot issued by Sir James Munby, president of the court of protection, came into force on 29 January 2016. He has stressed how important it is to strike the right balance between greater transparency and safeguarding the privacy of people who lack capacity to make their own decisions.

The overriding concern about the pilot scheme is whether the interests of vulnerable people can still be adequately protected. The focus is therefore likely to be on how the press behave. The pilot is set to run for at least 6 months throughout all regions but may be extended.

Our court of protection lawyers welcome the move towards greater transparency in legal proceedings provided there are adequate safeguards in place to protect the vulnerable.

If you require assistance with any aspect of Court of Protection law then call our free legal helpline on 0808 139 1606 and speak to one of our specialist Court of Protection lawyers.

A recent court case has confirmed that the Court of Protection will not tolerate persistent breaches of a deputy’s accounting obligations. If you require guidance on removing a deputy then call our free legal helpline.

A deputy who was appointed to act on behalf of his 65 year old partner, CJ, having lived with her for 25 years has been removed by the Court of Protection.

The Office of the Public Guardian (OPG) made an application to the Court of Protection because they were concerned that the deputy was not complying with his duties. The OPG complained that he:

• had not filed any accounts on behalf since being appointed as a deputy;
• had not paid the yearly supervision fee of £88.00;
• had refused entry to an OPG worker, who attempted to visit CJ; and
• had invoiced the OPG for the time he spent corresponding with them.

The deputy was initially ordered to produce and submit the yearly accounts and to generally cooperate with the OPG staff. However, he refused to do so and this resulted in the court removing him as a deputy.

He asked the Court of Protection to reconsider and produced accounts of his business showing that he had not used his partner’s funds inappropriately. He also apologised for sending the invoice to the OPG, but felt that the OPG’s involvement was disproportionate.

The court was ‘absolutely certain’ that there had been no dishonest misuse of CJ’s funds. Nonetheless, it refused to reinstate the deputyship, stating that:

‘To turn a blind eye to [the deputy’s] wilful refusal to comply with his duties would erode and undermine the safeguarding work carried out by the OPG’s supervision and compliance teams, which cannot possibly be in the public interest”

The court added that to reinstate the deputy would essentially circumvent the court’s duty under international human rights law to ensure that vulnerable people under the court’s protection were shielded from abuse.

The court appointed a panel deputy to take his place and stated that an enquiry should be conducted, to ensure that CJ’s affairs were managed in the least restrictive way possible.

Breach of Court of Protection accounting requirements

So why did the Court take such a dim view of the deputy’s conduct? Clearly he had CJ’s best interests at heart and was not found to have financially abused his position as her deputy.

The Mental Capacity Act 2005, gives the Court authority to:

a) Require a deputy to take out a security bond as the court thinks fit; and

b) Require a deputy to submit reports as and when the court sees fit.

The deputy was clearly in breach of the second element of the accounting requirements. On the surface the breach seems to be a minor administrative error. However the breach goes much deeper than this. By refusing to provide the OPG with yearly accounts, he was preventing the OPG from correctly supervising CJ’s financial affairs. Removing a deputy in these circumstances is therefore understandable.

There have been numerous recent cases highlighting a deputy’s fraudulent use of a donor’s funds. The OPG’s involvement in a vulnerable person’s financial affairs is an essential safeguard against the financial abuse of a person who lacks capacity.

The potential impact of the deputy’s breach could have been that CJ’s money was fraudulently used. Without yearly accounts, the OPG is unable to protect the financial interests of the vulnerable people they protect. Although CJ did not come to any harm in this instance, the deputy’s refusal to work alongside the OPG was an indication that he was not a suitable deputy. Had he complied with the OPG’s request in the first instance it is unlikely that he would have been removed as CJ’s deputy.

Unfortunately it is CJ who has lost out overall as a result of the court removing her deputy. However, the court did direct that investigations should be made into how her best interests could be served in the least restrictive way possible. It could be that another family member can be appointed to monitor her finances.

If you require guidance on removing a deputy please contact us on 0808 139 1606 for a free informal chat about how we can help you and the legal costs that are likely to be involved.

If you require guidance on legal costs in the Court of Protection or would like us to defer payment of our costs until funds are released then give our free legal helpline a call.

If you are taking the time to read this article, there’s every possibility that a loved one has lost capacity and you need to do something about it.

Court of Protection law can be complex, and therefore expensive. Solicitors usually require payment up front, which presents a problem for those dealing with their loved one’s affairs.

Deferred solicitor’s costs

When someone close to you loses capacity, you may find yourself in a classic ‘chicken and egg’ scenario – you cannot access their money because they have lost capacity, to access the money you need to make a Court of Protection application, but in order to do this you require money for legal costs. It’s a vicious circle.

We recognise that people will experience ‘cash flow’ problems. We are therefore often prepared to defer our fees until the court allows you to access the funds. This means the costs do not need to be funded by you up front.

Court of Protection applications usually attract a £365 application fee. It is possible to ask the Court to reduce their fees by 50% (known as a ‘remission’) or in some circumstances, remove them entirely (an ‘exemption’).

Exemption from court of protection fees

A person is entitled to a total exemption of the court fee if they are in receipt of certain benefits. Remember, it is the person that has lost capacity who is assessed for an exemption, not the person applying.

Remission of court of protection fees

A person is entitled to a 50% remission of the court fee, depending on their age and disposable capital or income.

Disposable capital is usually made up of the following, although this list is not exhaustive:

Capital held in any type of savings account: ISAs; fixed rate bonds; market linked investment bonds or savings; or any other form of savings account.

Any type of redundancy capital payment received

Stocks or shares

Any jointly held capital (where one or more parties have a financial interest in a disposable capital source)

Second homes

Trust funds (where accessible), or any other fund available to you

What ‘income’ will be taken into consideration by the court of protection?

Income is the money you receive from any source and can include wages, money received from selling goods (including internet transactions) and rental income.

A person may be entitled to a remission of Court of Protection fees if their monthly income is below a certain level.

If you would like to discuss legal costs in the Court of Protection and deferring solicitor’s fees, please contact us on 0808 139 1606 for a free informal chat about how we can assist you.

The figures mentioned in this article were correct as at November 2020

A lasting power of attorney can save you money. We will deal with your LPA for a fixed fee. Prices start at just £445. Call us for further details.

It is natural to avoid thinking about the possibility that we may lose the capacity to manage our own affairs. However, while this might not be a pleasant thing to confront, it can cause additional problems, and expense, if you do not do so.

When a person loses capacity no individual has automatic authority to make financial or welfare decisions on their behalf; not even a wife or husband.

Nor is it widely appreciated that when someone loses mental capacity their bank account becomes suspended and funds cannot be released without the court’s permission. This leads to delays, financial hardship and a great deal of legal expense.

The only way to avoid these problems is to make a lasting power of attorney.

A lasting power of attorney gives you the ability to make decisions about who looks after you if and when you lose the capacity to do so yourself.

If you make a lasting power of attorney then your loved ones will not have to make an application to the Court of Protection. However, you must not leave it too late to make a lasting power of attorney.

A person must still have mental capacity to make a lasting power of attorney. It is therefore important that you contact us before capacity is lost, so that we can help you.

The cost of making a lasting power of attorney starts at just £445, with discounts available for couples.

If you would like further details of how a lasting power of attorney can save you money then please contact us today on 0808 139 1606 for a free informal chat about your options.

The role of ‘litigation friend’ in the Court of Protection can be undertaken by the Official Solicitor. However, this can lead to unnecessary expense and it is is not necessary or desirable in all cases. There may be other people more suited to step in such as family members or attorneys and we are here to help with appointing a litigation friend.

When is a litigation friend required?

A litigation friend is needed when someone is deemed by law to be unable to deal with court proceedings themselves. This generally applies to two categories of person: children under the age of 18 and those who do not have mental capacity.

Appointing a litigation friend

There are two ways of appointing a litigation friend:

1. by a court order; or
2. by someone agreeing to take on the role of litigation friend.

Who should become a litigation friend?

It is usually appropriate for a litigation friend to be someone who already has a close relationship with the person who lacks capacity to deal with matters themselves.

It is essential that the interests of the litigation friend do not conflict with those of the person they represent.

The litigation friend’s suitability to act in this role will have to be considered by the court in the event that legal proceedings are issued.

It is also important to bear in mind that when a legal matter has been resolved the court will often be required to approve the terms of any settlement at an ‘approval hearing’.

How we can help

If you are know someone who requires a litigation friend and you require legal guidance then please call our FREE helpline on 0808 139 1606.