Court of Protection news

 

DNA testing and the Court of Protection

The recent case of DCC v NHL [2019] EWCOP9 considered an application by a local authority for an order permitting a DNA sample to be taken from NHL to assist with DNA testing.

The application for the DNA sample to be taken was not contested. However, the case contains some important reminders for practitioners, carers and those taking samples where the patient lacks capacity and an application has been made to the Court of Protection authorising the taking of a sample.

DCC v NHL [2019] EWCOP9 - the case

NHL was suffering in the late stages of a genetic degenerative neurological condition known as Prion disease. A Judge in the Family Court had declared the outcome of DNA tests would be of vital importance in the resolution of proceedings to establish the paternity of a child and because there was a possibility that the child may have inherited the disease from NHL.NHL had previously indicated to a social worker that a paternity test should be undertaken so that the child could be made aware that they may have inherited the disease and would therefore have the opportunity to decide whether to undergo genetic testing.

The application was listed for a hearing but NHL’s condition deteriorated rapidly and an urgent out of hours application was made. However, before the order was made, it emerged that the DNA testing company had already visited NHL and had taken the DNA sample with the agreement of NHL’s family. However, the sample had been taken without the formal consent of NHL or approval of the court.

The Court’s decision

The Judge was satisfied that approval should be given for the taking of the DNA sample and made an order retrospectively authorising the taking of the sample. The Judge did not feel any injustice or harm had occurred in taking the DNA sample. However, the Court made the following points as a reminder of the correct procedure when an adult lacks capacity to give their consent for a DNA sample to be taken:

  • Where the patient lacks capacity, an application has to be made to the Court of Protection for an order authorising the taking of a sample. It will be unlawful for the sample to be taken without the Court’s permission.
  • There is always a Judge of the Family Division available to sit in the Court of Protection to deal with urgent applications, usually be telephone, twenty four hours a day, seven days a week, every day of the year.
  • There is no excuse for failure to comply with the obligation to obtain the Court’s permission.
  • Any infringement in future will run the risk of not only attracting the Court’s severe criticism but also potentially incurring liability for damages if a breach of human rights occurred.

How can Boyes Turner help?

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@boyestuner.com

Who should be appointed Deputy?

The recent case of NKR v The Thomson Snell and Passmore Trust Corporation Ltd [2019] EWCOP 15 concerned an application to the Court of Protection for the discharge of the appointment of an existing professional property and affairs deputy and the appointment of another instead. The discharge of the existing deputy was agreed but there was an issue as to who should be appointed instead.

Background 

MBR was 12 years old and sustained cerebral palsy as a result of medical negligence shortly after his birth. MBR had received a significant personal injury award of damages and in anticipation of the award, a property and affairs deputy (Wrigleys Trust Ltd) was appointed in 2012. However, difficulties arose and MBR’s mother made an application to the Court for the deputy’s discharge and her own appointment as deputy instead. Ultimately, the Wrigley Trust Ltd appointment was discharged and the Thomson Snell and Passmore Trust Corporation Ltd appointed as deputy in 2017.

MBR’s mother made a further application to the Court in 2018 for the replacement deputy’s discharge and her own appointment as deputy but this time a joint appointment with Ms Sood who described herself as a “Direct Access Barrister.”

The deputy agreed that the relationship with MBR’s parents had broken down “to such a degree that we no longer believe that we are able to act in MBR’s best interests.” However, given various concerns around MBR’S finances, the deputy felt that a suitably qualified and experienced professional deputy should be appointed in their place.

The application went to a Dispute Resolution Hearing.

As a result of the hearing, it was agreed that MBR’s mother no longer sought her own appointment as deputy but no agreement was reached as to who should be appointed as replacement deputy. MBR’s mother wished for Ms Sood to be appointed and her second choice was a particular panel deputy, Mr Kambi. These preferences were based on MBR’s mother considering they had a good understanding of the family’s cultural and religious beliefs. The deputy preferred the appointment of Mr Kambi rather than Ms Sood due to his experience. Therefore, the Court was left to consider whether Ms Sood or Mr Kambi should be appointed as deputy.

Directions were made for further evidence and statements. The matter was then referred to the judge for consideration on the papers.

The Court’s decision

The Court must be satisfied that the person whose appointment is under consideration is capable of discharging the responsibility properly.

In the earlier case of Re AS; SH v LC [2012] MHLO 113 (COP) Senior Judge Lush set out “generally speaking” an order for preference of candidates for appointment as deputy. In this order for preference, a panel deputy is included “as deputy of last resort” after a “professional adviser, such as the family’s solicitor or accountant.”

The judge was not aware of any previous appointments of a barrister as professional deputy. Based on the information presented, the judge was willing to accept Ms Sood was personally and professionally a suitable person to hold a deputyship. However, the judge also had to consider the alternate option identified in this case, the panel deputy, Mr Kambi.

The breakdown of two deputyships demonstrated this was a particularly challenging deputyship and the concerns of the current deputy appeared well founded.

Ms Sood had not confirmed her approach to the cost of insurance and the judge was concerned about the likely extra financial burden to MBR.

Taking into account all matters, the judge decided it was in MBR’s best interests for the panel deputy to be appointed as replacement deputy.

Do we still need professional deputies?

Whilst it is a true that you don’t have 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 as 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 such an injury, 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@boyestuner.com.

Can a deputy withhold information about the size of a Personal Injury damages award?

The recent case of Re EXB v FDZ [2018] EWHC 3456 (QB) answers the question as to whether a deputy can withhold information about the size of a PI damages award from the claimant in his best interests.

Background

The High Court was asked to approve a settlement of a personal injury damages claim because the claimant (Peter) had sustained a brain injury in a car accident and was a protected party.

Peter who is in his 20’s, retained virtually a full life expectancy and the settlement was a significant sum.

The Court was also asked to make an order preventing the disclosure of the amount of the settlement to Peter as knowing the size of the award was not felt to be in his best interests.

Peter’s mother and deputy were concerned that should he know the size of the award, that this would diminish rapidly and there would be insufficient funds left to meet his support needs.

Peter’s friends were involved in criminal activity including drug taking. As well as the concerns of Peter’s mother and deputy, treating professionals were concerned about him knowing the size of the award given that he was vulnerable, impressionable and unable to control his impulses, in particular to spend money.

Peter himself said that it was better he did not know the size of the award although his views on this were not consistent.

From the deputy’s perspective, it would be hard to maintain a good relationship with Peter if he was seen as refusing to disclose the size of the award rather than presenting it as something he had to comply with as it had been ordered by the Court.

The Court’s decision

The judge sat as a judge of both the Queen’s Bench Division and the Court of Protection.

Due to his brain damage, Peter was unlikely to have capacity in the future.

The judge held that it was in Peter’s best interests for the deputy to withhold information about the size of the damages award. Overwhelming evidence showed that knowing the exact amount of the award would lead him to treat the settlement as a lottery win. Given Peter’s vulnerabilities, knowledge of his award, might lead to pressure from others to spend or give away money recklessly and impulsively.

It would be for Peter’s deputy to draw the attention of the order to anyone he knows has knowledge of the settlement amount. An injunction preventing any person who knew the size of Peter’s settlement from disclosing that to him would not be appropriate. It is not clear how this will be policed or how any breach would be dealt with.

What next?

This appears to be the first instance where information about the size of a damages award has been withheld from a claimant in their best interests by order of the Court.

It will be interesting to see whether any similar orders are made in the future. Potentially, a similar order could be made to the trustees of a Personal Injury Trust.

The judgment has been sent to others including the Vice-President of the Court of Protection so that they can consider whether any consultation on this issue is required and whether any action needs to be taken as a result.

For more information on Deputyships and Personal Injury Trusts and how we can help please contact our Court of Protection team by email on cop@boyestuner.com

Deputies and Carers: Hiring and maintaining

In this article we explain how a carer is hired by a property and affairs deputy. We will explore the process that is followed, how deputies and case managers work together and address some of the issues that often arise.

Agency care is becoming increasingly expensive and cannot be a cost effective solution for many client’s with care needs in the long term. Consistency of care is crucial, particularly where the client has complex care needs which require the carers to undergo specialist training. Familiarity is also important and will also contribute to good outcomes. We see our carers as instrumental to maximising our client’s quality of life as this enables them to live at home and maintain their independence. We always seek to ensure that carers have the passion, dedication, empathy and experience that are required to carry out this role.

The first step will be to identify how much care is required and whether any of this will need to be nursing care. If a Case Manager is instructed then they will be able to provide the Deputy with a report setting out the care requirements such as hours, qualifications, training and a description of the role to be advertised. The Deputy will always ensure that the client and their family should have as much input into this as they wish. 

Finding the right carer

This is often the greatest challenge! An advert is always a good way to find carers but it is not the only way to recruit. The client and their family may already know someone that they would like to employ or have been recommended a particular person or agency; the Case Manager may also have links with a recruitment agency. The Case Manager will usually oversee the interview process and again, the client and their family can be as involved as much as they want. We would always recommend that the client meets with the potential carer so that they can check that they are compatible and will be able to work together. It is important that the advert highlights exactly how complex the client’s needs are so that any prospective carer is fully aware of the level of need that they will be required to meet and support.

What is the role of the Deputy in hiring a carer?

Generally the Deputy will be the employer but there are cases where a family member would prefer to take that role. Once the carer has been identified and they have provided the necessary references and DBS checks the Deputy will seek specialist employment advice in order to draft the contract of employment. They will need to capture all the necessary information such as who the carer will report to, place of employment, salary, hours of work and office rules, holidays, benefits and monitoring.

The employment solicitor will identify the most appropriate contract depending on the circumstances of each case. In addition they will ensure that the job description is suitable and that the carer is issued with the disciplinary and grievance procedures.

After the contract of employment has been signed the carer will then provide their financial details so that payroll and pensions can be set up. The carer will then submit their timesheets on a monthly basis which will then be approved by either the case manager or the carer.

It is also important to ensure that the necessary employment liability insurances are in place. There are specialist providers of independent living insurance which offer protection for those employing personal assistants and carers.

Prior to the commencement of the role it will be important for them to carry out any necessary training if not already completed such as manual handing, suctioning, first aid, therapy and medication.

What if my carer is ill?

It is always important to have back up for the occasions when carers may be unwell or need to take time off. As an employee, carers are entitled to sick leave and also may put the client at risk of infection by attending work when they are unwell and so it is important to have contingencies in place. Where there is a team of carers in place they can provide cover or if there is a parent or relative living with the client then they can step in. Difficulties arise where there is only one carer in place; in such circumstances we would have plans in place such as using agency support on an ad hoc basis.

What challenges are faced in relation to paid carer support?

Numerous challenges can arise on a regular basis. Issues can arise that have to be dealt with on a frequent basis, examples include:

  • Lack of training/experience
  • Carer stress
  • Late payments from payroll company
  • Calculating holiday entitlements

It is so important to have access to employment advice and support as well as a robust contract of employment to ensure that both the employee and client are protected should such issues arise.

More complex challenges often occur as tensions can arise with the client and their families. There can be occasions where family members have unrealistic expectations of the carers, requiring them to work beyond their contracted hours and to carry out tasks that are not within the scope of the job description. Privacy and boundary issues within the family home are also an issue; by its very nature where the property is one person’s place of residence and another’s place of work this can be a very delicate situation. These issues have to be dealt with sensitively and on a case by case basis which is why it is so crucial for the deputy to have a good relationship with the client, family and case manager.

If you require further information and advice on Deputyships please email the team at cop@boyesturner.com. We also offer advice for lay Deputies and can assist with applications, preparing annual reports and dealing with issues arising from the deputyship.

Do you need capacity to use the internet and social media?

There has certainly been a rise and development of the internet and social media over recent years. This has changed the way in which we communicate with each other. Electronic devices such mobile phones are now used across the world for communication, entertainment, education, relaxation and for gathering information. There are an ever growing number of social media apps.

Arguably the internet and social media are even more important to people who have a disability and or difficulties with social communication. However, the internet can be a dark place with illegal material readily accessible. Internet abuse is common place and can take many forms including bullying, sexual grooming and personal identity theft.

In the recently reported case of Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP2, the Court of Protection sets out the information P must be able to understand, retain, use and weigh up to have capacity to access the internet and social media safely.

Background:

P is a young adult and identifies as a gay man. P had learning difficulties with low levels of literacy. He resided in a supported living placement where he received extensive support. Without support, P would be unable to manage his personal and domestic care needs.

What was the case about?

Court of Protection proceedings had been instigated by the local authority when concerns emerged about P’s capacity to make decisions about his residence, care, contact with others and internet use.

Concerns had been raised about P’s internet use. He had shared intimate photos with unknown men on social media and had accessed extreme pornography and images of child abuse. P had also made contact with sex offenders. The police were concerned P could commit offences of unlawful distribution of images due to his lack of understanding. Practical steps had been taken to help P understand the issues, without success.

The Court’s decision:

The Court was asked to consider whether it was in P’s best interests to restrict his use of the internet and social media.

In assessing whether P had capacity to weigh up the risk involved, the judge applied the criteria set at section 3(1)(a) of the Mental Capacity Act 2005.

The judgment sets out the relevant information which P needs to be able to understand, retain, use and weigh. For example:

“i) information and image s(including videos) which you share on the internet or through social media could be shared more widely, including with people you don’t know, without you knowing or being able to stop it”

The issue of whether someone had capacity to engage in social media for the purposes of online contact should be considered separately from any consideration of who that person should have contact with generally. However, when assessing capacity to access the internet safely there should be a universal test covering use of the internet to contact others as well as using the internet for other purposes such as entertainment or education.

Having considered the evidence available, the judge was satisfied that P did not have capacity to use the internet or social media. This is not just ‘unwise’ behaviour. As a result, the Court approved the local authority’s plan for P to have limited access, under a degree of supervision, to the internet.

On the other issues, the judge decided that P had capacity to decide on his residence and consent to sexual relations but that he lacks capacity to litigate, in relation to his care and support package and contact, and in the management of his property and finances.

What if I have concerns about a vulnerable person?

Although this case concerns a young adult, the criteria for accessing the internet and social media safely will be relevant to other vulnerable groups including the elderly.

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 capacity and deputyship please contact our Court of Protection team by email on cop@boyestuner.com

The role of a professional deputy: My life as a professional deputy

I act as a professional Financial Deputy for many clients and recently I have had a run of people wanting to change their Professional Deputy and come to me. So what causes this? Well, there are several reasons and it is usually a combination of two or three but the biggest reason by far is a lack of communication they receive from their current Deputy. Families do not know what is going on, they’d like to know more but are reluctant to ask.

What is a Professional Deputy?

Under section 4(7)(b) of the Mental Capacity Act 2005 a Deputy has a duty to take into account and consult “anyone engaged in caring for the person or interested in his welfare”. Therefore the Deputy has to take into account the views of the family when making best interest decisions. Apart from this being an obligation under the Act it also helps build a relationship so that everyone can make clearer and more well informed decisions for the client. It also builds trust.

How we work as Professional Deputy team

I have a team of 10 so even if I am out of the office there is always someone to help. I visit my clients once a year for a face to face meeting and have an allocated solicitor as my “second in command”. The system works well. 

My whole team understand how important it is to get to know the client. It is not just about investing their money wisely. It is also about knowing our clients as individuals so that we can do our best for them. Do they have favourite places they like to go on holiday? Are they a really close family unit and like to treat each other at Christmas? Or, are they so in love with cars that they would really appreciate an older car to do up as a fun project? Small things I know but this really does help build on the knowledge you have of a client.

What is the most important thing about being a Professional Deputy?

Being a Professional Deputy is all about relationships. The family need to know that they can talk to you and that you can all get on. You may not always agree on everything but then you should always be able to talk it through. You should never force a decision on someone. If you both want the best for your client then usually a solution can be found.

Other elements which are key to making a Deputyship work are:

  1. A firm relationship - A good relationship with the family, built on trust is hugely important.
  2. Strong communication - Even if the Deputy is unavailable there should be somebody else in the office you can speak to and emails should be responded to as quickly as possible.
  3. Honesty in your dealings - This works both ways. In the past I have received invoices from the client’s family that have been “doctored” which doesn’t help anyone.
  4. Explain your reasoning – Always ensure that family’s understand the reasoning behind advice or decisions you have taken or given on their behalf.

See the bigger picture – Never lose sight of the many things families have to cope with. Life may be filled with constantly reading medical reports. They need a break but cannot get it. I, as a Deputy need to be mindful of this as I do not live their lives but what I do see is hard for them. Somehow they cope and I hope that in my small way I can help with that.

If you would like to talk to Ruth or the Court of Protection team about your deputyship needs email them at cop@boyesturner.com

Personal Injury Trusts for Children

Following settlement of a claim our specialist Court of Protection team can assist with the financial management of the compensation your child has received. They help to ensure that your child is provided for throughout their entire life through a personal injury trust. Often our clients have never heard of a personal injury trust so in this article Ruth Meyer, head of the Court of Protection team, explains what they are in more detail…

What is a personal injury trust?

A trust is a relationship that is recognisable and enforceable by the court. When a person, even a child, receives compensation for personal injuries the child can put that compensation in a trust under the control of others known as trustees.

How can a personal injury trust be set up?

If a child is under 18 years of age then their litigation friend can set up a personal injury trust on their behalf. The litigation friend is usually their parent and they can apply to the court under the CPR rules to set up a trust. Some of the paperwork that they will need to submit includes, but is not limited to:

  • A draft of the trust deed.
  • Financial advice setting out the investment strategy.
  • Details of the cost of the trust.

What are the benefits of a personal injury trust?

If a trust is not applied for then if the child is still under 18 all of the award including any earlier interim payments must be paid into the court funds office until they reach 18. Any investment of that money is dealt with by the court funds office and interest paid is nominal.

It is usually better if funds are removed from the court so that full investment options can be looked at and flexibility given to the trustees. This will mean that they can use the money in the best interests of the child without having to go to the court each time for approval. This saves both time and money. It also allows the child to become more involved in the running of their trust as they are older otherwise they would simply receive the funds at the age of 18 without any guidance.

Will my child still be eligible for means tested state benefits?

A personal injury trust protects the compensation from being taken into account for assessment for means tested state benefits. A child may not be in receipt of such benefits while under the age of 18 but may be in the future. By setting up the trust while they are young, the compensation is ring fenced and this will continue into adulthood. 

A personal injury trust is also disregarded for local authority care should the child require local authority assistance or funding for care in the future.

Such a trust is particularly suitable for children who are likely to retain their capacity at 18 but for various reasons may remain vulnerable. The trust provides protection, guidance and flexibility.

When can I set up a personal injury trust for my child?

The best time to set up the trust is as soon as liability has been admitted in a claim and you know that an interim payment will shortly be made. You will need to ensure that any payment is paid directly into a trust bank account and not intermingled with the child's or parents' other accounts. If it is intermingled then that money cannot go into a trust. 

The trust bank account should be an account dedicated to only holding the compensation funds and have the facilities of an everyday current account for flexibility. Interest rates tend to be low but with the trust in place, trustees can transfer funds from the account to invest in assets with a higher return as long as they remember to keep those other assets in the name of the trustees. Income would then be paid from those assets into the trust bank account or rolled back into the trust investment.

What type of trust is a personal injury trust?

There are many types of trusts with different names. What is important is the source of funds. If the source is for personal injury then the trust is a personal injury trust which is also sometimes known as a special needs trust. Quite often compensation is placed into what is known as a 'bare trust'. The main advantages of this type of trust are that the child retains a large degree of control when they reach 18. If the child wants to they can close the trust down when they get to 18 and at that age they are free to change trustees.

The trust is also tax neutral which means that all income and capital gains are reported in the child's personal tax return as if it was income and capital gains in their own right. It is therefore taxed at their own rates and not at the higher trust tax rate. 

Who can be a trustee?

In respect of large compensation awards the trustees are usually the child's parents and a professional trustee such as a solicitor. A solicitor will be insured. There must be a minimum of two trustees and a maximum of four. A child can be a trustee of their own trust once they reach 18 as long as there are other trustees to act with them. For practical reasons there is more administration with a higher number of trustees.

The involvement of a professional trustee enables the trustees to receive ongoing professional advice through the child's minority and afterwards. If the child chooses to keep a professional trustee once they reach 18. A professional trustee will also help assist in accessing other professional support. 

What is the role of a trustee?

A trustee must look after the award (the 'trust fund') for the benefit of the beneficiary (the child). When trustees are appointed they agree to act in the interests of the beneficiary and not for themselves. They are entrusted with the funds and this is why it is called a 'trust'. The trustees will have certain powers over handling the trust fund and these are set out in the trust document.

What do trustees do?

Trustees are required to keep good records and accounts and pay the tax on time. They must seek appropriate advice, including financial advice and take reasonable care when carrying out their duties. Professional trustees, such as a solicitor, must take more care than others. 

What is the child's involvement in the trust?

As a child gets older, perhaps in their teenage years, they should start attending annual trustee meetings so that they can gain a better understanding of their financial position in readiness of turning 18. By that time they should hopefully understand and be happy with the arrangements in place and understand why a trust was set up in the first place. It is with this knowledge that they can choose to take on the role as a trustee themselves and continue with the trust if they wish.

What does a trust cost?

The cost will be set out in the application to the court for a trust for a child. These will also be included in the litigator's 'Schedule of Loss'. This will mean that they litigator will try and get those costs recovered by the defendant when the claim settles. It is not unusual to get costs paid for up to the age of 18 and sometimes beyond that if a child can be shown to retain mental capacity to understand their award but still remain vulnerable so that they require supported decision making.

Professional trustee's costs are usually on an hourly basis so they depend on the amount of work carried out. Administration costs can be higher with a large number of trustees or if one is particularly difficult to contact. Costs are usually higher in the first year while the trust is set up and it enters the first functioning year. After that they should decrease.

So, in summary, why should I set up a personal injury trust for my child?

  1. The creation of a trust means the trustees can deal with finances more easily and without the delay and expense associated with continual court applications each time sums are required.
  2. The trust allows for greater flexibility than if the funds remain in court.
  3. It is likely that trustees will obtain a better return by investing money outside of the court.
  4. The involvement for a professional trustee enables the trustees to receive ongoing professional advice throughout the child's lifetime both before they are 18 and once they are over 18 if they wish. For many, this assistance, once they reach adulthood, is when they need it most.
  5. A professional trustee can assist in accessing other professional support that the trustees may need and continue to need throughout the whole of the child's life.
  6. The trust ring-fences the compensation and the child is therefore protected from outside influences and opportunists and is especially beneficial after the child reaches 18.
  7. Once a child is 18 they can continue to receive means-tested state benefits as funds are protected from being taken into account from assessment.
  8. Professional trustee costs can be included within the award for damages up to the age of 18 and sometimes beyond.

If you or a member of your family know someone who might find a further conversation about setting up a personal injury trust for their child useful, contact the Court of Protection team by email at cop@boyesturner.com.

The basics of the Mental Capacity Act

What is the Mental Capacity Act?

Mental capacity is the ability to make decisions for yourself.

The Mental Capacity Act (MCA) 2005 is a law in England and Wales designed to protect and empower people who may lack the mental capacity to make their own decisions. It applies to people aged 16 and over. There is a Code of Practice which provides additional information about how the MCA works in practice.

Examples of people who may lack capacity include those with:

  • A stroke or brain injury
  • A mental health illness
  • Dementia

Just because a person may have one of the conditions mentioned above, it does not mean they lack capacity to make a specific decision.

Someone can lack capacity to make some decisions, for example a complex financial decision, but still have capacity to make other decisions, for example to purchase small items of personal expenditure.

The five key principles

The MCA is underpinned by five key principles.

  1. Every adult has the right to make decisions for themselves. It must be assumed that they are able to make their own decisions, unless it has been shown otherwise.
  2. Every adult has the right to be supported to make their own decisions. All reasonable help and support should be given to assist a person to make their own decisions and communicate those decisions, before it can be assumed that they have lost capacity.
  3. Every adult has the right to make decisions that may appear to be unwise or eccentric.
  4. If a person lacks capacity, any decisions taken on their behalf must be in their best interests.
  5. If a person lacks capacity, any decisions taken on their behalf must be the option least restrictive to their rights and freedoms.

Principles 1-3 support the process before or at the point of determining whether someone lacks capacity. Once it has been decided that a person lacks capacity, principles 4-5 support the decision making process.

How is mental capacity assessed?

The MCA sets out a 2 stage test of capacity.

  1. Is there an impairment of or disturbance in the functioning of a person’s mind or brain? If so,
  2. Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?

The MCA says a person is unable to make a decision if they cannot do one or more of the following:

  • Understand information given to them that is relevant to the decision they want to make
  • Retain that information long enough to be able to make the decision
  • Weigh up information available to make the decision
  • Communicate their decision by any possible means (verbal and non verbal).

Making decisions

Before deciding that someone lacks capacity to make a particular decision, it is important to take all practical and appropriate steps to enable them to make that decision themselves. These steps must be taken in a way which reflects the person’s individual circumstances and meets their particular needs. For example, what is the best way of presenting information to the person or is there a particular time of day when the person’s understanding is better?

If someone lacks the capacity to make a decision and the decision needs to be made for them, the MCA states the decision must be made in their best interests. It should never be made in the best interests of the person making the decision.

The MCA provides a non-exhaustive checklist to consider when deciding what is in a person’s best interests.

How can we help?

If someone lacks capacity having not made a Lasting Power of Attorney or Enduring Power of Attorney, an application can be made to the Court of Protection for the appointment of a Deputy.

The Court of Protection oversees the operation of the MCA.

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 the MCA or how to support someone to make their own decisions then please contact our Court of Protection team by email on cop@boyesturner.com.

Dementia - planning for the future

What is dementia?

Dementia is caused by a number of diseases that affect the brain. The most common is Alzheimer’s.

Most people associate memory loss with dementia and this is one of the symptoms. Other common symptoms of dementia include changes in mood or behaviour, misplacing things and disorientation to time and place. Different types of dementia affect the brain at different rates and in different ways. Dementia can affect every aspect of a person’s life including dealing with their own property and finances.

Why does dementia matter?

Dementia is one of the greatest challenges faced by society today. One in three people will develop dementia in their lifetime and one in nine people will have caring responsibilities for someone with dementia.

Whilst dementia typically affects people over 65, younger people can get dementia too.

There are currently over 850,000 people in the UK living with dementia. 225,000 people will develop dementia this year – that’s one person every three minutes.

It’s clear from the figures that dementia is a challenge which we have to face; it is not going away.

Planning for the future

Managing day to day money can be difficult for someone living with dementia. For example, a person living with dementia might forget to pay their phone bill or renew their house insurance. Imagine living with dementia and trying to deal with a bank, insurance company or utility company. Without support or understanding from the provider you are in contact with, this can often be upsetting.

Mental capacity is the ability to make decisions. As dementia progresses, the person living with the condition is likely to become unable to make some decisions for themselves.

If a person lacks the mental capacity to make their own decisions then the Mental Capacity Act 2005 is the law in England and Wales that supports these people and outlines who can and should make decisions on that person’s behalf.

If a person is no longer able to make their own decisions, 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.

A Deputy is a person appointed by the Court to manage the affairs of someone who lacks the capacity to manage their own affairs. A Deputy can be a relative or friend of the person who lacks capacity. In some circumstances, it may be appropriate to have a Professional Deputy, for example a solicitor.

How can we help?

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

Our specialist Court of Protection team has a wealth of experience in supporting individuals who lack capacity and their families either through assisting a lay deputy in making an application to the Court of Protection or in representing the individual as a professional deputy.

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.

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.

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