Court of Protection news

 

What happens when someone is found to be impersonating a vulnerable person for financial gain?

The recent case of Dudley Metropolitan Borough Council v Hill [2018] EWCOP 35 resulted in the Court making an order for committal to prison after the respondent was found guilty of impersonating P and incurring costs on P’s behalf that he was not authorised to do.

Background

P was a gentleman of 82 years of age living with dementia. P lived at home with support and the local authority was heavily involved in his affairs. During the proceedings, a provisional declaration was made that P lacked capacity and a deputy for property and financial affairs was put in place from January 2018.

What was the case about?

The case concerns an application for the respondent’s committal to prison for breach of certain injunctive orders made on 13 October 2017. The respondent was the son of P.

The respondent had previously been ordered not to contact P, directly or indirectly, or come within 100m of his house. This hearing was to determine whether he had breached those orders.

The respondent did not attend the hearing. As these were committal proceedings, the onus on proving the breach was on the local authority, the applicant.

The Court’s decision

Whilst the Court was not satisfied that some of the breaches had been proven to a criminal standard, it did find the respondent guilty of some of the breaches.

The breaches the respondent was found guilty of were:

  • Visiting P’s house when an injunction was in place
  • Arranging for the order and installation of a BT phone line and broadband without the authority of P and using the equipment at P’s property which meant further visits to P’s house when an injunction was in place.

When the BT order was placed, the caller purported to be P, giving his details including name, address and date of birth. The numbers the BT phone line was used to call were examined and the numbers were found to have links to the respondent – on many occasions it was used to call the respondent’s girlfriend. Therefore, the Court felt certain beyond reasonable doubt that the person who had placed the order with BT was the respondent.

In terms of the BT order, records show this was placed after the appointment of a deputy and therefore, the deputy was the only person with authority to incur place orders or make purchases on behalf of P. The Court found that the respondent had impersonated P in placing the BT order and had also incurred costs on P’s behalf that he was not authorised to do.

The respondent was sentenced to 4 months in prison.

What if I have concerns about a vulnerable person?

If a person is no longer able to manage their own property and financial affairs, and has not made a Power of Attorney, then an application should be made to the Court of Protection for the appointment of a Deputy.

What can be seen from this case is how important it is that the person’s money is properly managed and that decisions are made in the person’s best interests. Our specialist Court of Protection team has a wealth of experience in supporting individuals who lack capacity and their families.

For more information on deputyship and how we can help please contact our Court of Protection team by email on cop@boyesturner.com.

How can we support decision making when someone lacks capacity now or might in the future?

“ There are growing numbers of people in England and Wales, estimated as around 2 million, who may lack capacity to make decisions or themselves because of illness, injury or disability. There are also concerns about variations in quality, consistency and availability of support to facilitate decision making.”

This is where the 2018 NICE Guidelines on Decision Making and Mental Capacity, which was published back in October, becomes an invaluable tool.

The guideline covers decision making in people aged 16 years and over who may lack capacity now or in the future. The guidelines suggest ways to help people make decisions and maximise personal autonomy. They are aimed at health and social care professionals but the guidance can also be used by other professionals who may come into contact with people who lack mental capacity, independent advocates, deputies, family, friends or carers.

The guidelines apply to a range of decisions, from financial matters, day to day living and care. It also includes various recommendations including supporting decision making, best interests decision making, assessing mental capacity, training and support from staff and advance care planning.

How can NICE guidelines help you?

Every effort needs to be made to support people to make decisions when they have the mental capacity to do so and for them to still be the centre of the decision making process when they don’t have the mental capacity to do so, in which case a bests interest decision should be made on their behalf.

The guidelines contain a summary of key points and helpful reminders. The guidelines support the Mental Capacity Act 2005 and its Code of Practice which should be read alongside. They do not cover Deprivation of Liberty Safeguards processes.

What is supported decision making and how do you do it?

Section 1(3) of the Mental Capacity Act sets out that “a person is not to be treated as unable to make a decision unless all practicable steps to help him to so have been taken without success.”

Supporting decision making requires collaboration and trust – you need to understand what is involved in a particular decision, what aspects of the decision making a person may need support with and why. This may involve helping a person with their memory or communication or helping them understand and weigh up the information relevant to a decision.

Providing relevant information is essential in all decision making. All practical and appropriate steps must be taken to support others to make a decision for themselves.

A personalised approach must be taken during the decision making process accounting for any reasonable adjustments and the wide range of factors that can have an impact on a person’s ability to make a decision, for example a person’s physical or mental health, their communication needs, the effects of drugs or other substances or cultural or religious factors.

In terms of communication, it might be appropriate to use pictures, objects or illustrations. Find out from people who know the person well what the best form of communication. It is also helpful to know if there is a particular time of day when it is best to communicate with them.

You should involve significant and trust people in line with the person’s preference. If there is no one then it might be appropriate to involve an advocate.

An example of supported decision making

P lacked the mental capacity to manage his own property and affairs and a Professional Deputy was appointed. P was still able to make some decisions with support and wished to purchase his own property.

We encouraged P to research and identify properties of interest and his family and case manager were actively involved in this in order to support P to fully participate and make decisions. Fatigue was an issue for P so property viewings were arranged later in the day as that time suited him best. Notes were taken during the viewings and revisited with P after the viewings so that he could understand and weigh up the information – for example did he want to live near to a noisy main road - in order to make a decision as to his preferred property.

Once P had made his decision, we negotiated with the agents to secure the property for him and dealt with the property purchase.

How can we help?

It’s clear that there is a lot to think about when supporting an individual who lacks the mental capacity to make their own decision or might lack capacity in the future to make a decision.

Our specialist Court of Protection team has a wealth of experience in supporting individuals who lack capacity and their families.

If you have any queries or questions about how to support someone to make their own decisions then please contact our Court of Protection team by email on cop@boyesturner.com.

A level playing field in gaming

For years, like in most digital sectors, there has been a drive to make gaming more inclusive. In-game features like subtitles have had an overwhelmingly positive effect not only for those with hearing impairments, but for all players. Despite this progress, the hand-held controller can still be a barrier.

For many with physical impairments the world can be very isolating. Video games can provide an outlet for them to explore different worlds, interact with new environments and open avenues of social interaction that might otherwise be unachievable. In the digital world their disability becomes non-existent.

The early days

From the early days of video games in the 1980’s, right up to modern consoles, the way people have interacted with them has been through the handheld controller. The early models of the controller were developed for the Nintendo Entertainment System, and this standard has been refined and developed into the ergonomic controllers used on consoles today. There have been occasional deviations from this standard over the years, the Nintendo Wii’s motion controlled ‘Wii motes’ or the three handed controller… I’m looking at you Nintendo 64. But most have maintained the same formula, being developed for the two thumb stick, two index finger user, creating a barrier for those unable to use their hands in this way.

How research has helped

Research by Muscular Dystrophy UK found that 60 per cent of those with disabilities under the age of 24 consider gaming to be their favourite pastime. As Lauren West, manager of Muscular Dystrophy UK’s youth campaign group Trailblazers, explained it’s an area where “there’s increasingly limited care hours… [so] games provide a good opportunity to interact socially” but that “the industry hasn’t been hugely supportive” in providing accessibility technology. Microsoft has sought to change that and has partnered with a number of US charities including the Cerebral Palsy Foundation, The AbleGamers Foundation and SpecialEffects to design and develop a new style of controller that aims to remove these barriers.

The result

What came from that research is the Xbox Adaptive Controller which is specifically designed to make gaming more accessible to people with disabilities.

Three years in development, the Adaptive controller acts as a hub for a range of external devices such as track pads, joysticks and switches so that the controller can adapt to the unique needs of disabled gamers trying to enjoy a game. What’s more, the Adaptive controller has multiple input standards, from 3.5mm jack to USB 2 and Bluetooth for these external devices. A lot of people with physical impairments already have a range of similar devices for interaction or physiotherapy, the Adaptive controller can handle the inputs of these devices eliminating the need to buy a whole host of new equipment, you just unplug the switch from whatever device it was attached to and plug it into the Adaptive Controller. The controller also supports button customisation to enhance its adaptability to the play style of the individual user. Combined with Xbox’s efforts to enable play between the Xbox console and PC’s, the controller can work on both, adding to its versatility.

How equipment can be adapted

Thought has been put into how the controller can be mounted. Through its research, Microsoft discovered that gamers would mount their controllers with Velcro, so they added Velcro loops to the back for ease of securing. They also worked with third-party equipment manufacturers to ensure that mounting equipment for wheelchairs was compatible with the design. Even the packaging for the Adaptive controller, often an overlooked aspect, was designed so that it was accessible. Disabilities shouldn't prevent you from being able to enjoy the simple pleasures of opening your new controller.

Building on the in-game accessibility already included by game developers, Microsoft’s release of the Adaptive Controller is sending out a clear message; People with physical impairments can enjoy all the benefits the gaming world offers; and that this level of inclusivity will benefit the gaming community as a whole and put everyone on a level playing field.

For more information on how we help our clients get assitive technology to enhance their quality of life and how we can help with other Court of Protection issues please contact our Court of Protection team by email on cop@boyesturner.com

Can an office holder act as a Deputy?

The recent case of Re SH [2018] EWCOP 21 answers the question as to whether the Court can or should appoint as Deputy the holder of a specified office or position rather than a named individual.

Background

An application was made by the current holder of the post for the appointment of “The Head of Business Development & Client Finance” of Focus Independent Adult Social Work C.I.C. rather than a named person as property and affairs Deputy for “SH”.

SH was 71 years old and lacked the capacity to manage her own property and affairs. SH had modest assets.

The September 2018 hearing considering the following:

  1. Whether the Court can, or should, appoint as Deputy the holder of a specified office or position (as distinct from a named individual holding such office at the time of the appointment);
  2. If such appointment is made, the effect of any change to the holder of the office on the Deputyship; and
  3. If the Court is minded to appoint the applicant as property and affairs Deputy for SH, whether there should be any specific requirements in the order of appointment in respect of notification to the Court and/or the Office of the Public Guardian of any change to the holder of the office of Head of Business Development and Client Finance at the applicant company.

At the hearing additional background issues were also addressed. Namely:

  1. Whether acting as property and affairs Deputy is within the powers of Focus Independent Adult Social Work C.I.C.; and
  2. The extent of the professional indemnity insurance cover held by Focus Independent Adult Social Work C.I.C. and the Court’s approach to the application in light of any limitations.

The Office of the Public Guardian objected to an appointment of the Head of Business Development & Client Finance without specifying the name of the individual holding such post at the time of the appointment. This was based on concerns that the person initially selected may leave and his/her replacement may not be suitable.

The appointment of a Deputy is a ‘best interest’ decision for the Court – a generic role would deprive the Court of that decision if or when the postholder left. Whilst this could be overcome by returning to the Court if the postholder ceases to hold office, this would have a financial impact to the individual the application concerns.

The Court’s decision

Having considered all of the information available, the Court was satisfied that Focus Independent Adult Social Work C.I.C. was a suitable organisation and that the current holder of the office of Head of Business Development & Client Finance was a suitable person to be appointed as property and affairs Deputy for SH.

The appointment of an office holder continues with successive holders of the office. The Deputyship order specified that the holder of the office of Head of Business Development & Client Finance at the date of appointment was to notify the Office of the Public Guardian if they ceased to hold that post and/or if there is any change to the ability of Focus Independent Adult Social Work C.I.C. to carry out the functions of a Deputyship.

The Court was not satisfied that sufficient professional indemnity insurance cover was in place and a security requirement of £10,000 was set having in mind SH’s known assets, the nature of potential risk and the absence of alternative protection.

Do we still need professional Deputies?

Now we know that the Court is willing to appoint as Deputy the holder of a specified office or position rather than a named individual, as long as certain conditions are met, the question may be asked by some as to whether a professional Deputy is still worth it.

Whilst it is a true that you are not required by law to have a professional Deputy, no two cases are the same and sometimes there is no one willing to be Deputy or able to do it.

If an individual has been injured and is making or has made a personal injury claim for compensation then there is a strong case for having a professional Deputy. In fact, the Court is likely to insist on a professional Deputy where there is or is likely to be substantial assets. The Court wants to be satisfied that money will be managed properly and that decisions are made in the individual’s best interests.

The role of Deputy can be onerous and involve dealing with complicated matters. A good professional Deputy will work with you to make life easier. Professional Deputies are experienced in handing large sums of money and dealing with the complex and often sensitive issues that arise from sustaining an injury which limits a persons capacity, for example purchasing and adapting a property and putting in place a care team, both during the claim and in the years that follow.

For more information on professional deputyship and how we can help please contact our Court of Protection team by email on cop@boyesturner.com

Mental Capacity (Amendment) Bill Part 2

In the second part of this series we explore the current status of the Mental Capacity (Amendment) Act Bill. We look at how the proposed changes would reform the legal arrangements surrounding those who lack capacity, ensuring that such arrangements do not amount to a “Deprivation of Liberty”.

What is the current status of the Bill?

The first and second readings of the Bill took place in the House of Lords in July 2018. During the readings the Bill was criticised by the House of Lords, the Lords were concerned that many of the recommendations from the Law Commissions’ Report in 2017 were missing from the Bill.

The Bill then went through the Committee stage of the House of Lords and on 22 October 2018 the 3rd sitting took place. Many amendments were debated by the Lords but, following the address by Lord O’Shaughnessy, Parliamentary Under-Secretary of State, they were withdrawn.

The next stage of the Bill will take place on 21 November 2018 when the Bill will go through the Report stage in the House of Lords.

Whilst no changes have been made to the Bill it is accepted that there will be amendments proposed at the Report stage by both the House of Lords and the Government.

What issues did the Lords raise?

Some of the questions raised by the Lords include:

  • Why the new safeguards only applied to those who are 18 or over.
  • There being no statutory definition of the term “deprivation of liberty” within the proposed legislation.
  • The burden on Care Home managers and concerns as to whether there would be a conflict of interest in them carrying out the assessments and pre-authorisation reviews.
  • The Code of Practice and how it will be implemented.
  • The assessment procedures.
  • The reliance on previous medical and capacity assessments whilst reducing duplication.
  • Training and how this could be facilitated.
  • The role of the Approved Mental Capacity Practitioner.
  • The need for wishes and feelings to be obtained and considered as part of the liberty protection safeguards process.
  • Consultation with others, particularly family members and carers.
  • Independence in the system.
  • The renewals procedure, particularly where there has been a change in circumstances and the existing authorisation ceases to have effect.
  • The use of the term “unsound mind” which is widely considered to be stigmatising and inappropriate.

Lord O’Shaughnessy set out a number of responses to the amendments made by the peers in a lengthy speech. He has indicated an intention to make a number of changes to the Bill. He announced that amendments to the Bill will be made including:

  1. Extending the scheme to 16 and 17 year olds - This is currently a grey area as in November 2017, LJ Munby giving the leading judgment in the Court of Appeal held that where a child over 16 lacks capacity to make the relevant decisions for themselves the consent of someone with parental responsibility is sufficient to mean there is no “Deprivation of Liberty” that needs authorisation, even if the other elements are satisfied. The Supreme Court decision on this issue which was heard in October and is awaiting judgment.
  2. Replacing the term “unsound mind” with a new definition - There are concerns that the new language may create a gap but Lord O’Shaughnessy was confident that work could be done to prevent any ambiguity when drafting the new language.
  3. Introducing a requirement to consult with the relevant person as well as others nominated by the person and consider their wishes and feelings obtained in that process.
  4. Defining the term “Deprivation of Liberty”.
  5. Implementing a procedure for safeguards to be justified where there is a risk of harm to others.
  6. Ensuring independence by confirming that care home managers will not carry out three core assessments, instead they must be commissioned or previous assessments relied upon.
  7. Preventing any conflict of interest in the pre-authorisation reviews which must only be carried out by the responsible body.
  8. Expanding the code of practice to ensure that certain cases are referred to an Approved Mental Capacity Professional.

Lord O’Shaughnessy stated:

“I hope that in responding to these amendments I will be able to show further that we are taking a positive and constructive view on improving the Bill, making sure not that it removes rights but quite the opposite—that it provides access to liberty-protection safeguards for people who do not currently enjoy them.”

The joint (Commons and Lords) Committee on Human Rights published on 26 October its report on the Bill addressing the need for a definition of the term “Deprivation of Liberty” and their concerns regarding the potential conflicts of interest for care home managers. This signifies a real commitment to change and is an important step in this process.

There are still many outstanding issues with the Bill in its current form. Some critics have labelled it “unworkable” and lacking in clarity. Some have even suggested that the Government should go back to the drawing board and start again using the Law Commissions Report as a basis.

The next stage of the Bill will be crucial to its progression and ensuring that sufficient safeguards are in place for the vulnerable adults to whom this legislation is designed to protect.

What about those who are deprived of their liberty now?

The existing “Deprivation of Liberty” safeguards under Schedule A1 of the Mental Capacity Act 2005 will remain in force.

How can we help?

If you have any concerns queries regarding the care arrangements of a person you may know then contact our specialist team for confidential and friend expert help and advice.

At Boyes Turner, our community care and court of protection teams are experienced in supporting individuals who lack capacity and their families through the legal, administrative and practical challenges that arise in relation to their care and residential arrangements.

Our legal experts provide our clients with a range of support, depending on the individual’s needs, from background legal advice and support in achieving appropriate levels of social care to managing local authority and ombudsman complaints or representing the individual and their family in judicial review proceedings.

By ensuring that you understand the system and know your rights, we can help you obtain the right social care and support for your family member.

Contact us at cop@boyesturner.com or telephone the team on 0118 952 7219.

Mental Capacity (Amendment) Bill Part 1

A new Bill is currently making its way through parliament to replace the existing law which protects the rights of people who do not have the mental capacity to make decisions about their care.

Mental Capacity (Amendment) Bill

When a person lacks capacity to consent to their care arrangements including where they live and the type of care they receive a decision has to be made for them. This decision must be in their best interests and take into account their wishes and feelings.

Sometimes this involves reducing their independence or preventing them from leaving their place of residence and may amount to a “Deprivation of Liberty”. The right to liberty is a Human Right under Article 5 of the European Convention on Human Rights and as such any restriction on a person’s liberty must be lawfully authorised.

The current system governing these arrangements and ensuring there are safeguards in place was reviewed by the Law Commission in 2017. The report was highly critical of the current system as it had found that it was too complex and bureaucratic. It was not working as effectively as it could, with many applications to authorise care arrangements being submitted late. The consequence of this is that vulnerable people are being unlawfully deprived of their liberty in hospitals, care homes and even in their own homes. Clearly something has to change.

The government is now proposing to replace the existing scheme known as the “Deprivation of Liberty Safeguards” or “DoLs” with a new system which will be called the “Liberty Protection Safeguards”. A Bill is currently working its way through parliament with the aim of it being passed into law in 2021.

According to the Department of Health and Social Care the reforms aim to:

  • introduce a simpler process that involves families more and gives swifter access to assessments
  • be less burdensome on people, carers, families and local authorities
  • allow the NHS, rather than local authorities, to make decisions about their patients, allowing a more efficient and clearly accountable process
  • consider restrictions of people’s liberties as part of their overall care package
  • get rid of repeat assessments and authorisations when someone moves between a care home, hospital and ambulance as part of their treatment

Key Features

  • It will be possible to authorise an interim deprivation of liberty in three circumstances:

1. Where a decision relevant to whether there is authority to deprive the person of liberty is being sought from the Court of Protection;

2. Where steps are being taken (either by a responsible body or a care home manager) to obtain authorisation; or

3. In an emergency, e.g. where a patient is attempting to self-discharge or is refusing life-sustaining treatment.

  • The new scheme introduces a “responsible body” who will be required to authorise arrangements, this will be:

1. The “hospital manager” where the arrangements are carried out mainly in a hospital;

2. A CCG or Local Health Board in the case of arrangements carried out through NHS continuing health care (but not mainly in a hospital);

3. A local authority in all other cases, including where care is arranged by the local authority, and where care is provided to people paying for their own care

  • Before a responsible body can authorise the arrangements it must be satisfied that the following criteria is satisfied:

1. The person who is the subject of the arrangements lacks the capacity to consent to the arrangements;

2. The person is of unsound mind; and

3. The arrangements are necessary and proportionate.

  • Care Home managers must now arrange the relevant assessments and take the other necessary steps before an authorisation can be given by the responsible body for those whose arrangements are wholly or partly carried out in a care home.
  • The responsible body or care home will be required to consult with the person, their relatives, friends and carers in order to establish their wishes and feelings in relation to the arrangements.
  • A person who is not involved in the daily care of the individual concerned must carry out a pre-authorisation review as to whether the responsible body’s decision that the authorisation conditions are met is reasonable. Where a person is objecting, an “Approved Mental Capacity Professional” must carry out the review.
  • The individual concerned should be represented and supported by an “appropriate person” or Independent Mental Capacity Advocate (“IMCA”).
  • There will be ongoing safeguards including regular reviews. Authorisations can be renewed after the first year and then in longer periods of up to 3 years.
  • Mental Health patients in the community can be subject to a liberty protection safeguard as well as Mental Health Act requirements.

The Bill is not due to be brought into law until 2020 so further changes may yet be made. Watch out for the further articles on this topic.

How can we help?

If you have any concerns queries regarding the care arrangements of a person you may know then contact our specialist team for confidential and friend expert help and advice.

At Boyes Turner, our community care and court of protection teams are experienced in supporting individuals who lack capacity and their families through the legal, administrative and practical challenges that arise in relation to their care and residential arrangements. Our legal experts provide our clients with a range of levels of support, depending on the individual’s needs, from background legal advice and support in achieving appropriate levels of social care to managing local authority and ombudsman complaints or representing the individual and their family in judicial review proceedings. By ensuring that you understand the system and know your rights, we can help you obtain the right social care and support for your family member. 

For more information about how the community care and court of protection teams can help you or for a free initial discussion please contact them by email by email at cop@boyesturner.com.

60 Seconds with Jamie Woods: Taking the leap from PI to Court of Protection

Jamie Woods recently joined Boyes Turner’s Court of Protection team. He joined us following over 10 years in personal injury claims, taking a courageous leap in changing specialisms and retraining in Court of Protection.

  • What kind of personal injury claims were you involved in?

For the past 10+ years I’ve acted on behalf of clients who had suffered a personal injury, particularly those suffering from complex industrial disease.

  • What attracted you to Court of Protection work and Boyes Turner?

Whilst I thoroughly enjoyed personal injury claims, I reached a point in my career where I wanted to embrace a fresh challenge.

I have taken great pride in having dedicated my career to building lasting relationships with my clients and helping them achieve outcomes which can make a real difference to their lives. I therefore wanted to pursue a change of specialism which allowed me to continue this. Court of Protection immediately stood out to me as being such an area of practice. 

Starting a new journey in your career is a very daunting experience, especially when you have been working in a particular role for so long. It was therefore important to me to not only choose the right practice specialism, but choose the right law firm to work with.

It is true that not all law firms are the same. I was already aware that Boyes Turner had a highly regarded and respected Court of Protection team and when the opportunity came up to become part of that, I didn’t hesitate to apply.

Ruth Meyer, who heads up the Court of Protection team, is exceptionally passionate about the work she does, the clients she acts for and the team she has. I knew when I first met Ruth that working with her and working within Court of Protection was right for me.

  • What work are you currently doing?

I am currently involved in the management of day to day financial matters for high value Deputyships and Trusts. This sees me acting on behalf of some of the most vulnerable people in society, from severely disabled children & young adults to the elderly.

My work involves assisting with decisions in relation to investments, personal budgets, capital expenditure, property sale/purchase and coordinating property adaptations tailored to individual clients with disabilities - including those who have received a damages award as a result of medical negligence or catastrophic injury.

  • How does the work you did previously help you in your new role?

Working within personal injury claims you can often find yourself working with clients who are experiencing difficult and challenging circumstances in their lives. It was therefore important to ensure I fully understood their needs and that I acted in their best interests as efficiently and as sensitively as possible.

Court of Protection is fast paced, in depth and challenging. No one day is the same and you can find yourself juggling various tasks at once, as well as finding yourself dealing with very difficult and sensitive issues. You therefore have to be able to meticulously manage your time, deal with issues under pressure, and put the client at the heart of everything you do in a supportive, patient and compassionate manner. These are skills that I had already developed over my career and they have proven invaluable to me when joining the Boyes Turner Court of Protection team.

  • What sort of work do you enjoy doing now you are in Court of Protection?

I enjoy meeting clients and having the opportunity to work closely with them and their families to find solutions which will help improve their quality of life.

I recently met a young girl with cerebral palsy, arising from medical negligence at birth. Working closely with her family, we helped her to obtain an all-terrain wheelchair so she could enjoy trips to the beach. She absolutely loves it and the wheelchair gives her the mobility to have experiences which she couldn’t easily have had before. It is these sorts of situations that make working within Court of Protection incredibly rewarding.

  • How do you see your future progressing?

Boyes Turner are a dynamic and forward thinking firm. They are not afraid to nurture talent and recognise genuine commitment and potential. Since starting, I am continuously afforded new opportunities to progress, learn and achieve my full potential.

The entire Court of Protection team are extremely talented, knowledgeable and experienced people. This makes all the difference and has really helped my transition to Court of Protection.

I can honestly say, even at this early stage of my new journey, that I had made the right decision to change specialisms. I now look forward to many successful and rewarding years within the Court of Protection team at Boyes Turner.

If you would like to find out more about how the Court of Protection team at Boyes Turner can help you please contact the team by email on cop@boyesturner.com.

Interview with a fund manager: Alexander Wright talks to Richard McGregor of Arbuthnot Latham

Alexander Wright senior associate - solicitor in the Court of Protection team at Boyes Turner interviews Richard McGregor, the Head of Court of Protection & Personal Injury at Arbuthnot Latham. Alexander and Richard work closely together on both Deputyship and Personal Injury Trust cases. Richard explains his role and how he approaches investments for clients with compensation awards for personal injury, including brain injury.

  • Why Court of Protection/Personal Injury Trust work?

Previously I worked with some very wealthy private investors and enjoyed it, but I value working with vulnerable people more. It is a considerable responsibility knowing that a recipient of a damages award is reliant on their damages to cover their care needs for the rest of their life. Clients often have little if any investment experience and are very much depending on you.

Claimants generally don’t get an opportunity to go back to court in future years, if they were to run out of money, and their time frame could be fifty years or more, so we need to plan meticulously and work closely with families and their legal representatives over the years.

  • How did you get into Court of Protection/Personal Injury Trust work?

I started as a financial planner and have qualified as both a chartered financial planner and a chartered investment adviser. 15 years ago I was presented with an opportunity to get involved in Court of Protection work and thought it looked very interesting.  I have not looked back since and I can’t imagine specialising in any other area of financial planning and investment management.

  • What is different about Court of Protection/Personal Injury investment compared to your regular private investor?

Recipients of personal injury awards may receive a large amount of money, but it is crucial that this lasts them for the rest of their life, and there is no margin for error.

This is one of the key challenges and requires careful cash-flow and liquidity management, hands on investment risk management, and a close relationship with the deputy or trustees, and the claimant and their family, if appropriate.

Sometimes it means having challenging conversations about expenditure levels in the context of long term sustainability and the required investment risk to drive the return. However, this dialogue is crucial if we are to achieve a successful long term financial outcome, and it relies on having built a very strong relationship.

  • What is your experience of working with Boyes Turner’s Court of Protection team?

Many professions break down into highly specialist areas these days, and it is always reassuring to work with other professionals who have a clear track record and reputation for being highly specialist in their field. The team at Boyes Turner are highly specialist, and perhaps one of the key elements of this is experience

  • What do you value about the investment service you provide?

Arbuthnot Latham has a corporate accreditation as a Chartered Financial Planner as well as employing a number of chartered planners, including planners specialising within our Court of Protection and Personal Injury Team.

We also provide a discretionary investment service as we believe that the pro-active risk management approach is crucial for vulnerable clients, but we don’t create our own investment products to avoid conflict.

Our financial planners and investment managers work as a team, for each client, ensuring a personal service and an investment strategy that is constructed around each client’s individual needs.

  • Have you ever turned down a client?

I would never “turn down” a vulnerable client. However, I have from time to time advised a potential client not to invest, perhaps because investment management is not appropriate and their required solution is simplistic and short term e.g. a cash management solution.

I also enjoy providing some advice on a pro bono basis each year, which, I think, is an important part of the professional service we provide to vulnerable clients.

  • What do you do in your spare time?

I am pleased to say that I have recently been made Special Ambassador for the Child Brain Injury Trust, there are just four of us nationally. The Child Brain Injury Trust is very close to my heart and I thoroughly enjoy supporting them. Through my work, I get to see, first-hand, the incredible support the trust provides to children and their families following a child brain injury.

I have a wonderful family – with three children – so you can imagine how much of my time is spent! I also enjoy both mountain and road cycling, and have completed cycling sportives including the Dartmoor Classic Grande and the London-Surrey Ride 100 for the Child Brain Injury Trust. I am also a ferocious reader and book collector, and can’t help wondering into second hand book shops, much to my family’s annoyance!

If you would like to find out more about how the Court of Protection team at Boyes Turner can help you please contact the team by email on cop@boyesturner.com.

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.

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.

 

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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.

Boyes Turner client

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