Court of Protection news

 

So, you want to change your deputy?

You are never obliged to stay with the same deputy. The relationship between the deputy and their client must be built on confidence and trust and in the knowledge that they have considered your wishes. You may not always agree on something but then that gives you the opportunity to talk things through and reach a resolution.

Choice is absolutely essential. If you feel you are struggling to work with your deputy then you will feel stressed and costs will increase. You may even feel yourself reluctantly communicating. Surely this cannot be in a person’s ‘best interests’? – Something which goes to the heart of the Mental Capacity Act 2005 

We have a highly experienced team at Boyes Turner and each team member is hand-picked for their empathy, experience and ability to work with people from all different backgrounds. The team is led by Ruth Meyer with over 20 years’ experience. We are specialists in applications to the Court of Protection and acting as a deputy for finances.

At Boyes Turner we don’t just take over but instead work with people to ensure that the spirit of the Mental Capacity Act is adhered to. This includes supporting people in the decision making process so that we take into account their own wishes and feelings as well as their beliefs and values and any other factor that should be taken into account.  We also ensure that we take into account the views of others such as anyone engaged in caring for the person or interested in their welfare and quite often than not this is the parents of the person concerned.

There have been several occasions in which we have helped clients who were either unhappy with their current deputy or felt that their current deputy didn’t have the skills to be able to fully support them and act in their best interest. We have had matters referred to us not only from the general public but also from other solicitors, case managers, financial advisers and other experts.

We would be happy to have a free initial discussion to work out what is best for you and to ensure that any transfer from one deputy to the next is as seamless as possible. 

If you would like to discuss your current deputyship arrangement or to talk about how to set one up please email our specialist team on cop@boyesturner.com or phone 0118 952 7219.

What is a professional deputy?

A professional deputy is a practising solicitor with several years of experience in acting for vulnerable clients. They manage the property and affairs of both adults and children who are deemed to be mentally incapable of making their own financial decisions. With children, it is on the basis that they would not be considered to have sufficient mental capacity to manage their finances by the age of 18 and it is likely that they would have received a compensation award as a result of a medical negligence action.

A professional deputy will have a thorough understanding of the Mental Capacity Act 2005 and adhere to the deputyship standards issued by the Office of the Public Guardian (OPG) which can be found here.

They are appointed by the Court of Protection and can be a panel deputy (also known as a ‘Deputy of Last Resort’) or a solicitor of your own choice. Choice is crucial. It is essential that you work with the right person who takes time to listen to you and explain a solution to financial issues.

What does a professional deputy do?

We do not get involved in making financial decisions that a person can make themselves. For instance a person may be able to manage a modest amount of money without our involvement. However, generally we are involved in the routine day to day finances such as paying utilities and invoices for therapy, acting as an employer and paying carers, arranging the payment of tax and making sure you have enough money to meet your needs.

We also get involved in the purchase and sale of property as well as adapting it and working with a team of experts such as architects, surveyors, occupational therapists and VAT experts to ensure the best possible financial outcome.

As a professional deputy we will work alongside a financial adviser to ensure that your money is safely and securely invested but also accessible to meet your needs.

In respect to children and young adults under the age of 25 we are involved in ensuring that your Education and Healthcare Plan fully meets your need and provides you with the therapies that you are entitled to. In this respect we work alongside our education solicitors and the family to achieve the best outcome.

As you can see we take a broad and far reaching approach!

How are professional deputies supervised?

Professional deputies are supervised by the OPG which are the administrative arm of the Court of Protection. The deputy is expected to complete annual accounts as well as an estimate of their annual costs for the OPG to review. They are expected to always act in good faith and in the best interests of their client. The OPG can send a court visitor to discuss with the deputy what policies and procedures they have in place to protect their clients’ interests.

How do they charge?

The OPG have issued a leaflet on professional deputyship fees which can be found at here.

Professional deputyship hourly rates can be found here. These are set by the Government and have not changed since 2010. We operate under Reading rates, which are National Band 1 and considerably less expensive than London rates, making us extremely cost effective.

Each year a professional deputy can either accept “fixed costs” as set out here or ask for the Senior Court Costs Office (SCCO) to assess their costs. The SCCO will look at not only the hourly rate of the fee earner but also the time taken to complete that work to ensure that it is not only fair and reasonable but also proportionate to the value of the assets. We always prefer to have our costs assessed by an independent person.

Top 7 reasons why you should appoint a professional deputy

  1. Peace of mind and knowing that someone with considerable experience will be managing the finances in a professional way so that the family can concentrate on care and welfare issues.
  2. All legal fees are overseen independently by the SCCO but in particular the deputy will work with the family to keep costs as low as possible.
  3. Professional deputies quite often have an extensive network of other contacts such as care managers, therapists, accountants and financial advisers so that the best team can be put in place to assist a client in a holistic way.
  4. Professional deputies will be able to make savings in other areas that a lay deputy may not be aware of such as Council Tax reductions.
  5. Professional deputies will have a working knowledge of other inter-related financial matters such as State Benefits, tax and VAT exemptions for equipment.
  6. Professional deputies will adhere to the deputyship standards as set down by the OPG who also provide independent supervision.
  7. A professional deputy will not only have a security bond in place which is a form of insurance protecting the financial assets of the person concerned but they will also have their own professional indemnity insurance.

Why us?

Clients sometimes worry that a Professional Deputy will “take over”. Boyes Turner’s professional deputies are very experienced and will work with a family to ensure that they always act in the client’s best interests. In any event, under Section 4 of the MCA 2005 when acting in best interests a deputy must take into account “if practical and appropriate” the views of ‘anyone engaged in caring for the person or interested in their welfare’. More often than not this will be the immediate family. A professional deputy will know this but it is helpful for families to be aware of this when instructing a solicitor for it gives them the assurance that they too have a voice when decisions are made on behalf of their loved one.

We are regularly appointed by the Court of Protection to act as a professional deputy for individuals who lack capacity. We have particular expertise in managing significant awards of compensation either through medical negligence or through an acquired brain injury but equally our experience means we are adept at managing the finances of people with dementia or other age related issues that affect capacity.

Each case is individual. We take the time to get to know our clients and their family first. We appreciate how stressful our client’s lives are and we will work with you to manage finances and support you in your decision making. Even though we concentrate on finances we never forget the human side to our work. It is not just about finances but also about mutual respect that leads to trust and confidence in what we do.

 

Former Senior Judge warns of risks with Powers of Attorney

Yesterday an eminent former member of the judiciary spoke on the BBC about his concerns with Powers of Attorney. Denzil Lush was the most senior judge at the Court of Protection from 1996 until he retired in July 2016. He knows a thing or two about Powers of Attorney and Deputyship.

There has been a huge push over the years for people to make Powers of Attorney, and for good reason. We never know what might happen to us, or when. For those who suffer a brain injury, or even a physical injury, having a Power of Attorney in place can mean that if you need help your finances can be looked after immediately by someone that you trust.

However, today Denzil Lush highlighted an important concern. Some people make Powers of Attorney without having the right advice or an opportunity to think about the consequences or the alternatives. The people you appoint in your Power of Attorney may not be the best people to manage your property and finances, and it could lead to a breakdown in the family relationship. For vulnerable people it could lead to financial abuse like that which Frank Willett suffered.

The former Senior Judge said that for him, the alternative – a Deputyship – was the better option. There are many reason why he thinks that. For one, there is more supervision of the person acting on your behalf if they are a Deputy appointed by the Court. They have to produce accounts each year. They will be visited on a regular basis to make sure everything done properly and you are looked after. With Deputyships, there is also a security bond, which protects the value of your estate if the person acting on your behalf acts outside of their authority. The downside is that you will have little or no say in who is appointed to manage your financial affairs, and it can sometimes take several months for someone to get the authority they need to manage your finances. A Deputy can only be appointed once someone has lost capacity.

Former Senior Judge Lush said he would not make a Power of Attorney. For him, the Deputyship systems was a better one. For me, the Power of Attorney system would work well. This is a personal choice that we all need to consider. It’s about what is right in your own circumstances, and getting the right advice.

Top 10 ways a deputy can save money!

I act as a property and finance Deputy for many clients. This means I am appointed by the Court to make decisions about finances when they are unable to make the decision themselves.

I always try to save clients money. After all, I would do the same if it was my own money.

Here are my Top 10 ways in which we have saved clients money:

One

  • Always negotiate on estate agents fees. Recently we have saved a client £5,000.

Two

  • Negotiate on fund manager’s fees. In certain cases they will cap the annual fee which recently meant that we were able to save the client over £40,000 over a ten year period.

Three

  • Make sure you compare quotes on car insurance. We were able to save a client £1,600 by making one telephone call.

Four

  • Always negotiate on rent especially if paying six months up front.

Five

  • It is possible to negotiate the interest rate paid by the Bank so as to receive a slightly higher rate.

Six

  • Ensure that you apply for all entitlement to State funding and that State Benefits are reviewed annually.

Seven

  • We have reclaimed the VAT on equipment for disabled clients and where adaptations have been made.

Eight

  • We have been able to obtain Council Tax reductions where properties have been adapted. On one occasion I was able to arrange to have this backdated 10 years!

Nine

  • We always review the education and health care plans for students under the age of 25 so as to ensure that all therapy that should be included is included so that it is correctly paid for by the local authority and not privately funded.

Ten

  • Clients who receive annual periodical payments should always ensure that the calculations from insurers or from the NHSLA are checked carefully as it is not unknown for there to be errors which need to be corrected.

Brain Injury Group


Brain Injury Group
The Court of Protection Team are now members of the Brain Injury Group. This is a national network of specialist brain injury lawyers and other experts that provide access to a complete package of care and support for people affected by brain injury.

Our Court of Protection Team represents clients affected by brain injury through both deputyship and trusts and our partnership with the brain injury group enhances the support we can give.

We are now on a panel of experts that can assist with many types of Court of Protection applications.  By being part of the Brain Injury Group we now also have access to the UK’s leading provider of independent mental capacity assessments as well as to a specialist independent financial adviser.

Q&A with Anne Pearson

Over the following weeks we will be sharing a series of question and answer articles about our day-to-day lives in a Court of Protection team. This week, I interviewed Anne Pearson who is a Senior Manager in the Court of Protection team.

Anne Pearson

Anne has specialised in Court of Protection matters for over 15 years. Originally, Anne was a nurse before moving into the legal profession. Anne first worked on fast track personal injury matters before progressing to assist with catastrophic injury claims, including the reported catastrophic case of Biesheuvel v Burrell (1998) which was, at the time, the largest compensation award in the UK for a spinal injury matter.

  • How has your experience being a nurse and a personal injury lawyer influenced your work in COP? 

    My original background is in nursing in Leicester. After I took maternity leave I wanted to look for an alternative career. I relocated to Buckinghamshire in 1996 and found a position in a firm in Slough dealing with personal injury claims. As I become more experienced in this area of law I took on more catastrophic claims for spinal and head injury claims. This work introduced me to Court of Protection work.

    I began work in the Court of Protection area prior to the Mental Capacity Act where Deputies were still called Receivers. I have now been dealing solely with Court of Protection work for 15 years. The implementation of the Mental Capacity Act saw much more responsibility passed from the Court to the Deputy. This proved to be much more beneficial to the clients as it meant they could be much more involved in the decision making. My background in nursing gave me a better understanding of the injuries and associated issues in the personal injury cases.

    My knowledge of personal injury helped with understanding how a claim is progressed and how the compensation award for catastrophic cases was calculated. So both nursing and working in personal injury have really helped my work in Court of Protection.

  • Which personal skills does it take to succeed at this type of work? 

    It is really important for a Court of Protection practitioner to have empathy, understanding and be able to remain calm in stressful situations. I always remember that an accident causing catastrophic injury or medical negligence has devastating consequences to our clients and their families. I always bear that in mind when dealing with the families, particularly if they are being demanding.

  • What is the most rewarding part of your work? 

    Our aim within the Court of Protection team and in line with the Court of Protection requirements is to empower our clients as much as possible. That is easier to achieve with some clients more than others, depending on the severity of their needs. Some situations where our clients require increased assistance is when we are purchasing and adapting a property and applying for their benefits. When purchasing a new property for a client I always ensure I apply for disabled funding grants (DFG).

    I have significant experience applying for DFGs and I have been successful on a number of occasions. I also have significant experience with applying for benefits and transitioning my clients from Disability Living Allowance to Personal Independence Payments (PIP).

    To apply for PIP there is a very complex questionnaire to be completed so as to achieve the maximum benefit to the client.However, I gain most satisfaction from seeing that my client is happy and seeing them engage with me by smiling or looking pleased to see me. That makes all the hard work behind the scenes worthwhile because I know that I have done my best to provide my client with the best quality of life.

Q&A with Emma Wheeldon

Emma Wheeldon

Emma is a paralegal in the Court of Protection team, assisting Ruth and the team with Deputyship and Personal Injury Trust work. Emma deals with clients on a day-to-day basis as well as liaising with other professionals in order to make the clients’ lives as easy as possible wherever she can.

  • How does working in the Court of Protection team compare with other jobs you have had?

    No two days are ever the same! In previous jobs my work has been similar most days and almost predictable, but in the Court of Protection team this is never the case and this is what I love! Most days I have a plan of what I am going to get done but one phone call can change a whole morning and a new plan takes over.

    I find it so rewarding when helping our vulnerable clients and their families to find a solution to a problem that has occurred.

  • What is a typical day like in the Court of Protection team?

    It has been said many times I could have a variety of job titles such as banker, interior designer, managing agent, PA, social worker, travel coordinator, along with a few others. My job definitely varies on a day-to day basis.In the morning when I arrive there is normally a pile of invoices that need to be checked and payments made, which can range from house deposits to gardening work. We have a number of ongoing house adaptation projects – I regularly speak to the client’s family regarding decoration and appliances to pass information onto the builder.

    I may be ticking off that to-do-list when I get a phone call saying a taxi has not arrived where it should be for a client and they are going to miss a hospital appointment, or a call that a family’s boiler has broken down and they have no heating.  In this instance I have to act quickly to find a solution to the problem, as although no one likes to be without their heating or hot water, for our vulnerable children and adults it is crucial that their heating is working.It may then be the end of the day and before I leave the office I receive an urgent invoice for a piece of equipment that will greatly enhance a young child’s life. I always like to make sure these payments are actioned straightaway as this one piece of equipment can make all the difference to the child.

  • What is the most memorable event that happened whilst you were in this team?

    There are so many memorable moments and I couldn’t possibly list them all. One of my favourite moments is when I received a physiotherapist’s report regarding a child who had not received physiotherapy input for many years and was really in need of some therapy. After researching many physiotherapists, I found someone who could visit the client. After just a few sessions the report I received highlighted the incredible differences the therapist had made to this child’s life. It is so rewarding to know that the hard work paid off and the child was really benefiting from the therapy.

    I feel that I am in a very privileged position to be able to help some very vulnerable children and adults. Life has changed so unexpectedly for our families and I have total admiration for what they do every single day. If I can help our clients and families by taking a little bit of pressure from them and helping sort a problem then I can go home knowing I have made a difference.

It's a dogs life

The British love their dogs. My own dog is a rescued 17 year old Collie cross that I love dearly. He’s been a family member since my children were small.

Court of Protection therapy dogs

So, I was surprised to see the recent case of Mrs P v Rochdale Borough Council and Anor (2016) EWCOP B1.

This case involved a professional deputy appointed to manage the money of Mrs P, an elderly stroke victim. The client had lost capacity and was totally devoted to her dog Bobby. Requests had been made to bring Bobby to see her and also provide money for new clothes and special food. However such requests went unanswered.

My own thoughts were that it’s bad enough to ignore requests for clothes and food but the dog!

Anyone who owns a pet, or even if they don’t own one must be aware of that special bond. If anything, a pet allows people who have lost capacity to carry on their lives with some normality.

The court heard that Bobby was ‘the only living being with whom she shares any love and devotion’ and that Mrs P’s face ‘lights up’ when she sees other dogs.

The upshot of the case was that the deputy was found guilty of ignoring Mrs P’s needs. He was not acting in her best interests. The deputy was removed and a new one appointed.

The moral of this story for all deputies out there – always act in best interests and above all act with compassion.

Hear me - why communication is so important

We learn to communicate from the moment we are born but as we get older, communication can become more difficult. This could be due to hearing loss or even a brain injury. Loss of communication can lead to isolation. 

In the Court of Protection team we have to show that a person cannot understand decisions involving their money. We will ask if a person can:

  • Understand what money they have
  • Remember what they said about it
  • Weigh up the pros and cons of a decision
  • Communicate the decision

If a person cannot do any of the above then they will not understand decisions about their money and this includes being able to communicate their wishes.

Most people think that communication relates only to being able to speak but in fact it often encompass much more such as nodding or facial expressions and other kinds of body language such as the blinking.

I was recently able to communicate with a young adult client of mine by concentrating on her facial expressions.  When she didn’t agree with something her face saddened and had a beaming smile when she agreed. Her views were very clear!

Also, bear in mind that a person’s communication skills may be better at certain times of the day – maybe the afternoon rather than the morning.

Have you seen the film “The Theory of Everything”? This was about the life of Stephen Hawking, a Cambridge physicist. Stephen has Motor Neurone Disease, causing his muscles to waste which eventually affected his speech. However, his brain was not affected.   Finally, a tracheotomy meant that he lost what little speech he had left. What impressed me was the way in which his nurse was able to help him communicate using a spelling board. It was a laborious process and you could see how frustrating and demoralising it was when he couldn’t communicate.

The only time we would not be able to communicate with a person would be if they had locked in syndrome or were unconscious or in a coma.

Locked in syndrome is a condition in which a patient is aware but cannot move or communicate verbally due to paralysis of muscles so that they have absolutely no control over their body.

However, an article published on the BBC website showed that a brain-computer interface could be used to read the thoughts of patients to answer basic yes or no questions. One man was able to repeatedly refuse permission for his daughter to marry!

Hopefully advances in technology will help us communicate so that we maintain this basic ability as human’s thrive through communication.

Should you ever need to consider a deputy to manage the financial affairs of a family member or friend then please contact us as we will always try to communicate in the best way suited for that person. We can help them understand the process and ensure that they are involved in as much of the decision making as possible.

Court of Protection - Contracts for Carers

The recent decision in the Pimlico case is the latest decision to highlight the importance of properly employing carers: http://www.bbc.co.uk/news/business-38931211. Alexander Wright, associate – solicitor at Boyes Turner, explains more.

What is this case about?

Gary Smith was a plumber for Pimlico Plumbers. He was working on a self-employed basis, but when he wanted to go part time after an illness Pimlico refused. Mr Smith claimed that he was in fact a “worker”, not self-employed, and that he was “dismissed”. He claimed that as a worker he was entitled to basic workers’ rights, which are not given to self-employed contractors.Court of Protection solicitors, court of protection lawyers, pimlico plumbers

I employ carers, not plumbers, so how does this affect me?

If you are a Deputy or Attorney and you are directly employing carers, it is very important to know which of your carers is actually an “employee” or “worker” and who are “self-employed”. In this case Pimlico plumbers have had significant legal fees because they didn’t get it right. If any of your carers think they are “self-employed” it is best that you check this with an employment specialist.

What is the risk to me?

If a self-employed worker decides that they think they are an employee they can take the claim to the Employment Tribunal. If you are the employer then the claim will be against you personally. You would have legal fees and other financial penalties. It’s not a risk worth taking. It’s one reason why it is so important to have Employers Liability Insurance.

How can I be sure that someone is self-employed?

Speak to an employment specialist because this area of law is changing all the time. Just because a person says they are self-employed doesn’t mean that they are. Even if you have a contract saying they are self-employed, that is not enough. There are several factors that need to be considered and it’s not advisable to make this decision without legal assistance.

How do I check if I’m at risk?

In the Court of Protection team we employ hundreds of people to care for our clients. We get every contract checked by our employment specialists. We know the importance of making sure that our clients are fully protected. Sometimes we recruit people who say they are self-employed but we see them as “employed”. Every contract needs to be checked carefully.

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The service was personal, professional and considered. I was treated so kindly and in the end I knew that not only had I found the right organisation but also the right person.

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