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October 24, 2018
Opposing a lasting power of attorney in the Court of Protection

Opposing a lasting power of attorney in the Court of Protection

Scott Storey recently succeeded in opposing the registration of a lasting power of attorney in the Court of Protection (‘COP’).

Under subsections 22(3) and (4) of the Mental Capacity Act 2005, if the COP is satisfied that the donee of a lasting power of attorney has behaved, is behaving or proposes to behave in a way that contravenes their authority or is not in P’s best interests, the COP may:

  • Direct that an instrument purporting to create the lasting power of attorney is not to be registered; or
  • If P lacks capacity to do so, revoke the instrument or the lasting power of attorney.

The COP is able to take into account a number of factors in determining whether this test is met. In Re J [2011] COPLR Con Vol 716, HHJ Marshall QC noted at paragraph 77 that the COP can consider:

‘… any past behaviour or apparent prospective behaviour by the attorney, but, depending on the circumstances and gravity of any offending behaviour found, it can then take whatever steps it regards as appropriate in P’s best interests (this only arising if P lacks capacity), to deal with the situation, whether by revoking the power or by taking some other course’

In Re Harcourt [2013] COPLR 69, which concerned a property and affairs lasting power of attorney, Senior Judge Lush held at paragraph 60 that:

‘The factor of magnetic importance in determining what is in Mrs Harcourt’s best interests is that her property and financial affairs should be managed competently, honestly and for her benefit.’

Accordingly, Senior Judge Lush found that the donee was not acting in Mrs Harcourt’s best interests in circumstances where she had, amongst other things, failed to pay care fees on time, had not provided pocket money and had made frequent cash withdrawals.

Scott Storey acts for clients in both health and welfare and property and affairs matters in the Court of Protection. He has experience of cases ranging from deputyship applications to proceedings concerning the Deprivation of Liberty Safeguards.

Scott Storey | Court of Protection

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September 7, 2018
Court of Protection: Deputyship – Scrutiny of Deputies

Court of Protection: Deputyship – Scrutiny of Deputies

When a loved one lacks mental capacity to make their own decisions it can be an incredibly distressing time for members of their family.

The Court of Protection in English law is a superior court of record created under the Mental Capacity Act 2005. This court makes decisions on financial or welfare matters for people who can’t make decisions for themselves (they ‘lack mental capacity’) at the time they need to be made.

This is a complex area of law with complex outcomes – people close to the individual may be assigned as deputies to make decisions on their behalf, and sometimes there may be disagreement between those concerned or a misuse of the responsibilities bestowed.

Abuse of a Deputy’s powers – example

In the case of GM, MJ and JM  [2013] EWHC 2966, the Court heard an application to retrospectively approve gifts already made and expenses of Deputies out of the funds of the protected party (P). It was a highly concerning case that demonstrated the potential for abuse of a deputy’s powers.

The Deputies made gifts to the value of approximately £60,000 to each of themselves (including Rolex and Omega watches and an Alexander McQueen handbag) and a further £50,000-odd to friends and family. ‘Expenses’ that they sought to have approved included the purchase of brand new vehicles e.g. a Mini Countryman, all paid for out of P’s funds. All this, while only allowing P an allowance of £314 a month for her personal expenditure; and refusing to allow her further funds to buy her own clothes, something which she was able to do.

P’s finances were found to be in disarray due to the Deputies actions and the Court removed the Deputies.

This article looks at the restrictions on the powers and the exercise of those powers by deputies with the aim of outlining options for those who are concerned that a deputy may be acting inappropriately and to inform those deputies of the limitations and challenges that may be faced in practice.

Deputyship Order – Scope & Limitations

The starting point for those concerned about the exercise of powers over the affairs of a Protected Party (P) is the Deputyship Order itself.

Where there is no appointment under an LPA (Lasting Power of Attorney – made by the person themselves before they lose mental capacity), and capacity has been lost, an application to the Court of Protection may be necessary in order to deal with P’s affairs.  The Court of Protection has powers to make decisions about P’s property and his personal welfare.

The fundamental principle to be considered in the legal approach is what is in the best interests of P.  What will be in the best interests of P in one case may be a minor factor in another and as such the ‘best interests’ consideration will vary case by case Re Peter Jones [2014] EWCOP 59.

It is important to note that the powers under this framework are qualified throughout the Act by the requirement to consider whether P has capacity to make decisions or certain decisions by his or herself. Whilst someone may not be able to manage certain aspects of their financial affairs, there may be other things that they are perfectly capable of handling – section 20(1):

“A deputy does not have power to make a decision on behalf of P in relation to a matter if he knows or has reasonable grounds for believing that P has capacity in relation to the matter”.

The powers granted under a Deputyship order may be prescribed specifically or limited to only certain matters. Indeed, in respect of health and welfare matters, the Court to date remains reluctant to make a Deputyship order or extend the order to include these. Usually such type of decisions cannot be made any one person or at least only one person making such a decision may not be in P’s best interests.

A Deputy can be subject to supervision (there are 4 different types) and may also be required to put down a security bond (a kind of insurance to protect the assets of the protected person) which can be used in the event of a failure to act or a breach of deputyship obligations.

Challenging a Deputyship Appointment & Removal

The process of applying for a deputyship order requires the applicant to serve a copy of the application or to notify those who may have an interest in respect of the application e.g. family members.

Those who are served with the application will also be served with a COP5 form, allowing them to consent or object to the application; if objecting a witness statement in COP24 must be filed. A contested hearing can result but objections are highly unlikely to succeed where a professional Deputy can be appointed. This may not be appropriate where P’s finances are limited but the Court is likely to have little option where parties cannot agree who is to be appointed.

As set out above, the Court has the power to remove Deputies who do not act in accordance with their obligations.

On the face of it however, unless there is an application before the Court of Protection, there does not seem to be a mechanism for individuals to challenge the management of P’s affairs by a Deputy before the Court. There is a heavy reliance therefore on supervision and the risk of losing the security bond.

Challenging the Exercise of Powers conferred on a Deputy

The Office of the Public Guardian (the OPG) is responsible for overseeing deputies and attorney appointed under a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA).  Where an LPA or EPA has not been granted before a person loses capacity, an application for a Deputyship order must be made to the Court of Protection, whether to deal with their financial and/or welfare affairs.

In GM, MJ and JM, the OPG was added as a Respondent in respect of the application to the Court for approval of gifts and payments to the Deputies. The OPG recommended the removal of the Deputies because all of P’s funds could not be accounted for; the gifts and expenses they sought to have approved were extensive and not reflective of P’s wishes; but most importantly for acting in breach of the Code of Practice:

5.23′The decision maker should make sure that all practical means are used to enable and encourage the person to participate as fully as possible in the decision-making process and any action taken as a result, or to help the person improve their ability to participate.’

Changes were introduced to tighten the supervision of deputies and attorneys in 2014, with the requirement for professional deputies to submit annual reports from March 2016. Theses forms also ask the Deputy to set out matters other than financial matters e.g. how many people P has seen on a regular basis other than the person they live with? The OPG also asks professional deputies to submit a breakdown of the costs involved in their care as well as an estimate for the following year.

The misuse of funds or abuse of a Deputy’s position can be reported to the Office of the Public Guardian; a direct application to the Court of Protection is not possible.

Concluding Remarks

Deputyship orders are arrived at with some scrutiny and can have limitations put in place, addressing some concerns of those with an interest in P’s affairs. Hence it is imperative that the Deputyship Order is drafted with some care. As LPAs are not granted by the Court, the initial scrutiny and use of limitation to the powers of attorneys is not available, making Deputyship a preferable option for some.

It is ultimately the Office of the Public Guardian which is tasked with overseeing a system which essentially relies upon both professional and lay deputies acting in good faith. Any omissions or failures of the OPG could also lead to an action for a judicial review of their decision/ handling of the complaint.

As socio-economic factors such as the aging population and declining public funds continue to disproportionately affect requirements it may be that the need for the Court of Protection is greater than ever, requiring an even more radical approach.

If you are looking to the Court of Protection in the case of a loved one who has lost capacity to act for themselves, our highly experienced, specialist barriers will be able to advise you and represent you in the Court of Protection if necessary.

If you would like to contact one of our team, please read our simple step-by-step guide, then get in touch with our clerks who will discuss your needs and put you in touch with the barrister best able to help you.

 

By Abha Pandya | Court of Protection

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Upon receiving your enquiry a public access clerk will contact you within 24 hours to discuss your case in further detail. Please see our 4 steps outlining the process of instructing a public access barrister with Barrister For Me.

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