Trainee solicitor Leanne Gibson sheds light on this ‘little-known area of law’
I am openly passionate about Court of Protection (‘CoP’) work but as it is a little-known area of law, when I talk about it, I am often met with a blank stare. My usual one liner response is that we manage the financial affairs of vulnerable and elderly adults who no longer have capacity to do so themselves — but it is so much more than this!
The CoP is a specialist court designed to make decisions on behalf of a person (‘P’) who lacks mental capacity to make a decision independently, at the time it needs to be made. This can be done in a number of ways, including:
• Appointing deputies to make ongoing decisions for people who lack mental capacity
• Giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity
• Making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration
• Considering applications to make statutory wills or gifts
• Making decisions about when someone can be deprived of their liberty under the Mental Capacity Act 2005
The work conducted by the CoP can be divided into two categories:
1. Property and financial affairs
2. Health and welfare
My experience is in the former category, namely management of finances under either a lasting power of attorney or deputyship. However, the two categories are not so clearly divided and at times, there are circumstances whereby the two overlap.
When is a deputy required?
A deputy can be appointed to manage a person’s financial affairs for a number of reasons, including, but not limited to the following:
1. When a vulnerable adult has lost capacity as a result of progressive dementia. In this situation, the most common reasons for appointment are:
a. P has no suitable family members or friends that can act on their behalf as deputy. It may be that P no longer has any family members or sometimes their family members will approach a firm to act for their relative as they do not have the time or expertise to manage a large asset pool.
b. In the more sinister situation, P may have prepared a lasting power of attorney (LPA) in their lifetime appointing family members and/or friends to act in the event they later lost capacity. The appointed individuals then abuse their power and steal or misuse P’s funds. Once concerns are raised, the Office of the Public Guardian will conduct an investigation and if not satisfied with the outcome, the existing LPA will be revoked and an application will be made to the CoP for a panel deputy (a qualified professional who will be chosen from a list of approved law firms and charities if no one else is available to act as deputy) to be appointed (in circumstances whereby there are no other suitable family members and/or friends to act in place of the removed attorneys).
2. A person may require a deputy following an incident whereby they have subsequently lost capacity. There are various circumstances which may lead to a person losing capacity at an early stage in their lives e.g. brain injury as a result of a road traffic accident, medical negligence or injury to name but a few. In these instances, there may be ongoing litigation which will result in a large settlement to fund care needs for life. Where injury is severe and there is a need for ongoing care, the settlement is likely to be millions. A deputy is required to manage such a large settlement and ensure that investment is made appropriately.
3. Injury may occur at birth and in circumstances whereby there is a negligence claim, children may be funded for their care needs for life. Similar to the above, this can result in a very large settlement but in these circumstances, there is added complexity as claims continue to be calculated until the child reaches adulthood and therefore a deputy is required to manage interim payments and ensure that they are properly utilised.
4. It may be that a person is born with a disability and/or a learning difficulty which impacts their ability to understand, retain, weigh up and communicate decisions in respect of finances (Mental Capacity Act 2005, Section 3(1)(a-d)).
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How does a deputy manage finances?
When a deputyship order lands on our desk, we are rarely provided with the full client details. Our job is therefore to piece together a person’s entire financial portfolio and as a part of this, it is vital to understand their family circumstances, their lifestyle and to try to gain an understanding of their personality. This involves a lot of ‘digging’, speaking to the client, speaking to family members, care providers, social workers and other connected professionals.
Once we have pieced together a basic picture, we then have to consider the bigger picture and ensure that all financial affairs are in order. This may include:
• Wills — What if the existing will leaves the entire estate to a relative who has stolen from them? Or, what if there is no existing will?
We would then consider whether it is in P’s best interests* (or whether it would have been in their wishes if they were capacitous) for the existing will to stand. In the event it is not in their best interests (or there is no existing will), we then consider the totality of their estate and whether it would be cost effective for P to make a statutory will application to court.
*The best interests of P are at the forefront of every decision made by a deputy, as per Mental Capacity Act 2005, Section 1(5).
• Property — What if P has moved into residential care and they have a vacant property?
The first consideration and a prime example of the overlap between finances and health and welfare matters is whether the intention is for P to remain living in residential care. P may lack capacity to deal with finances but retain capacity in respect of health/welfare/living arrangements. If P objects to the placement then there may be a Section 21A challenge and in these circumstances, a financial deputy would not be able to proceed with an application to court to sell the property until the matter has been resolved and there are sufficient deprivation of liberty safeguards in place.
• Financial abuse — if it is clear that P has been the subject of financial abuse then we will carry out a thorough investigation, gather evidence and then decide whether the matter should be reported to the police or trading standards with a view to reclaiming misappropriated funds.
Essentially, there is no financial decision too big or too small for a deputy to consider.
A simple consideration for a deputy may be deciding how much personal monies P is able to afford on a weekly basis. Whereas examples of complex considerations include — where monies should be invested, whether a property should be sold or rented, whether adaptations to a property are affordable and required etc.
It is a common misconception that if you are diagnosed with dementia, suffer from a brain injury or have a learning difficulty or disability then you no longer have capacity to make your own decisions. This is simply not the case.
In the UK, there is a presumption of capacity which means that a person is assumed to have capacity unless it is established otherwise (Mental Capacity Act 2005, Section 1(1)). It is vital to note that capacity can fluctuate and is time- and decision-specific, therefore a person must be given the opportunity to make a decision for themselves and if they are unable to do so, this is when a deputy can step in and use their court-ordered authority. For example, a person may be able to budget their weekly personal monies but may not be able to make decisions about large investment portfolios.
Importantly, just because a person’s decision is seen as ‘unwise’ does not mean they lack capacity to make a decision. For example, you may think that choosing to spend half of your weekly personal monies on cigarettes would be an unwise decision but that does not mean the person lacks capacity to make that decision.
The principles of the Mental Capacity Act 2005 must always be borne in mind.
The rise of CoP matters
Arguably, CoP work is a ‘niche’ area of law but it is a vital part of the law and without it, there would be very little safeguarding for vulnerable people who are unable to manage their financial affairs. In the absence of such protection, they could be subjected to fraudulent activities, theft and/or financial abuse.
Sadly, dementia figures are rising which means that the need for a deputy will become more prevalent in the coming years.
In summary, there are endless considerations to take into account if you are a Court of Protection practitioner but ultimately, everything you do is to safeguard, help and ensure your client has the best quality of life. The relationships you build with clients over the years is a special part of working within CoP and you truly feel that you are making a difference to the lives of vulnerable children and adults.
Leanne Gibson is a second year trainee solicitor at Ramsdens Solicitors. She joined the firm as a paralegal and later completed her first seat in Court of Protection, having graduated in 2019 with a first class masters degree in law from Northumbria University.