Mental capacity 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.

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.

An unwise decision?

People make unwise decisions all the time, so is it right for people with mental disabilities that could affect their decision-making capacity to be expected to make ‘wiser’ or ‘better’ decisions than anyone else?

One of the principles of the Mental Capacity Act 2005 is that a person should not be treated as lacking capacity merely because he or she makes a decision that others would consider to be unwise. Different people will make different decisions as they give greater weight to some factors than others do and everyone will have their own values and preferences. What some people will see as an unwise decision, others will see as a sensible one. What we really need to question is whether the person has thought through the actual decision and the outcome and whether they have weighed up the risks involved.

I was approached by a client who was considered not to have sufficient mental capacity to manage his own finances. I was appointed as his Deputy through the Court of Protection to manage his property and financial affairs. In fact the client was very high functioning and could argue quite logically with me on certain points – more so than some clients who were believed to have the mental capacity to make financial decisions.

My client had been involved in a car accident and had received an award for compensation. Being a young man in his 20’s, he was keen to set up his own business and he wanted to set up a business selling vodka tasting to various nightclubs. Initially I was quite unsure about this and really didn’t want him to “waste” £5,000 of his compensation claim. However, I wanted him to be involved in the decision-making process and work out for himself that this would be a poor decision. I asked him to go away and put forward a business proposal and check whether he could get any additional funding from the bank. To my surprise he came back with a coherent business proposal and I agreed to fund the initial set up.

I knew the business would not be hugely successful but my client would have a lot of fun setting it up and running it and it would also give him something tangible to focus all his energy on. It was going to be a learning process for him but eventually the business folded.

The spending of £5,000 on this business may have been seen by some as an unwise decision but in fact the client was clearly able to see the steps involved in setting up the business and knew the risk that he was taking but for him he really enjoyed the challenge of doing this. So, as a Deputy, I may not agree with every decision a client makes but as long as I am happy that they have thought this through carefully and considered the consequences then the decision can stand. What matters is their ability to make that decision and not the outcome.

A question of fluctuating mental capacity...

Last year, the Court of Appeal handed down a judgement regarding an appeal in a case that concerned a claimant with a fluctuating capacity to conduct legal proceedings.

“Loss of capacity”

The question considered by the Court was whether a “loss of capacity has the automatic and immediate effect of terminating their solicitor’s retainer”.

This question of capacity is central to all Court of Protection work, and it is interesting to see how issues of capacity are dealt with across the judicial system.

This case began in 2002, when a patient brought proceedings claiming damages for clinical negligence. This was a complex and contested case, and it was not until February 2005 that the parties agreed that judgement should be entered for damages to be assessed on the basis of 95% liability.

Conditional Fee Agreement

At the commencement of proceedings, the claimant was deemed to lack the mental capacity to instruct solicitors and therefore she acted through her father as her litigation friend. However, when the claimant regained mental capacity in May 2005 her legal aid certificate was discharged and she immediately entered into a Conditional Fee Agreement (CFA) with her solicitors. As this was prior to the changes introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the claimant’s solicitors were entitled to recover a success fee from the defendant upon the settlement of her claim.

Appointment of a deputy

However, in February 2007, the claimant was again assessed as lacking mental capacity and the Court of Protection appointed a receiver who then became the claimant’s deputy with the introduction of the Mental Capacity Act. The deputy continued to liaise on behalf of the claimant with the litigating solicitors with regards to the ongoing clinical negligence claim.

After a considerable time, the quantum proceedings were settled and approved by the Court. As such, the claimant’s solicitors entered their Bill of Costs for assessment by the Court. Unfortunately, following a dispute from the defendant, the bill was required to be amended to exclude all costs claimed following the claimant’s loss of capacity in 2007.

The Judge commented that the decision in Findley v Barrington Jones [2009] (where it was found that a claimant who lost capacity was no longer able to give instructions and therefore the contract of retainer was frustrated) supported the defendants dispute and this led him to the “desperately unfair” conclusion that the claimant’s solicitors should be deprived of their costs, following their client’s lack of capacity.

Application for appeal

The claimant’s solicitors then applied for an appeal, which was eventually granted as a re-consideration on the basis that the arguments put forward were recognised to be of considerable importance. Mr Justice Phillips found that the defendant’s application to disallow the claimant’s solicitor’s costs following the loss of capacity in 2007 should be dismissed. He gave detailed responses to all of the points raised, and in some instances was in agreement with the initial judgement. However, the fundamental question remained as to whether a change to incapacity should terminate a solicitor’s retainer.

Change to mental capacity

The Judge held that a change in mental capacity does not automatically terminate a solicitor’s retainer. Contracts entered into by a mentally incapacitated person are not void, but voidable. Therefore, “as a contract is not void even if one party lacked mental capacity when it was made, it cannot be the case that subsequent mental incapacity would in itself automatically terminate the contract as a matter of operation of law”.

Further to this, in cases of a loss of capacity where a claim is ongoing a deputy will be put in place in the short term, until capacity is regained. A loss of capacity is also a possibility that should be understood by both parties, and should therefore not be a situation that would frustrate the contract should it occur.

Fluctuating mental capacity and the Court of Protection

For clinical negligence and personal injury solicitors this is an important judgement that gives clarity on the issue of fluctuating capacity, which is one that is likely to be present in many cases that they take on.

For deputies and those working the Court of Protection, it is equally important to be aware of the importance of confirming the validity of any pre-existing contracts that were entered into, prior to the loss of capacity. Clarification as to whether a contract is still valid, and then taking steps to make a new contract if required, will avoid potentially costly situations such as the one above.

Fifty Shades of Capacity'

A person’s legal capacity to make decisions is rarely clear cut and can often be extremely difficult to assess. This is because they may have the ability to understand one particular issue but not others. To confuse things further, also, just because a person has capacity on one day it doesn’t necessarily follow that they will have it on the next or indeed even at a later time on that same day.

Where a person lacks capacity to manage their assets and make their own decisions a deputy is appointed by the Court of Protection. I have been a professional deputy for well over a decade and much of my time is spent working directly for clients managing their affairs and finances. I also provide help and assistance to parents who are deputies for their own children and many of the questions I get asked concern welfare issues.

One of these recently came my way from the parents of one of my clients, a young lady called Sarah. She was severely injured at birth resulting in cerebral palsy and severe learning difficulties. Her general level of understanding is similar to that of a young child and up until she was thirty, Sarah lived with her parents who were also her full time carers. For the last five years she has been in assisted living accommodation, is well looked after and makes lots friends.

The issue that occurred at first sight may seem trivial, a planned trip to the cinema organised by Sarah’s assisted living accommodation carers. Normally, this wouldn’t have been a problem – if the film had been appropriate for their daughter.

However, when Sarah’s parents heard that the movie was Fifty Shades of Grey they were very concerned. The film has an 18 certificate and contains explicit sex and violence as well as very strong language. According to the British Board of Film Classification, films rated 18 are for adults only and not suitable for children. No-one under 18 is allowed to see an 18 film at the cinema or buy or rent an 18 rated video.

For many parents with a child that has reduced capacity, seeing this type of film would be a major worry. This is the view that Sarah’s parents had and they believed that their daughter would have found Fifty Shades of Grey both extremely confusing and distressing. When they asked the home about the film’s suitability, they were told that as Sarah was over 18 that she could make this decision herself.

Sarah’s parents came to us wanting to know where they stood legally in terms of their own views as to what their adult daughter could watch.

The general rule in this type of situation is that if a person is over 18, and has capacity then they are able to make the decision themselves. However, under the Mental Capacity Act 2005 “if at the material time the person is unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance of the functioning of the mind or brain” – they lack the required capacity to make the decision.

Given Sarah’s situation and severe learning difficulties it was obvious that she didn’t have the required capacity and that any welfare decision should be made in her “best interests”. The question that the home should have considered is whether or not Sarah had sufficient capacity to make the decision to see Fifty Shades of Grey.

Under Section 4 of the Mental Capacity Act 2005 the residents’ home should consult and take the views of:

  • Anyone named by the person as someone to be consulted on the matter in question or on matters of that kind.
  • Anyone engaged in caring for the person or interested in his welfare.
  • Any done of a Lasting Power of Attorney granted by the person.
  • Any deputy appointed for the person by the Court.

I explained to Sarah’s parents that, as she was over 18, if she had capacity then she could make the decision as to whether to see the film herself. However, from what they said it became quite clear that she did not have capacity to make this decision and would be confused by what she would see and may even be upset.

I confirmed to the parents that if Sarah did not have capacity then any welfare decision would need to be made in what would be in her “best interests”.  Under section 4 of the Mental Capacity Act the residents’ home should consult and take the views of:

  1. Anyone named by the person as someone to be consulted on the matter in question or on matters of that kind;
  2. Anyone engaged in caring for the person or interested in his welfare;
  3. Any done of a Lasting Power of Attorney granted by the person; and
  4. Any deputy appointed for the person by the Court.

From this it is clear that Sarah’s parents should have been contacted by the home before considering the film as they had an interest in Sarah’s welfare. On reflection, the residents home subsequently decided that it no longer wished to take residents to see the film.

To prevent this type of situation from occurring again, Sarah’s parents were advised to write to the residents home to inform them that if a difficult decision needed to be made that they should be consulted as they were interested in their daughter’s welfare and that their views needed to be taken into account (according to the Mental Capacity Act).

When determining a person’s capacity to make a decision there are a large number of issues that need to be taken into consideration. It is rarely ever clear cut, and therefore often worthwhile appointing a professional deputy.

One man and his dog

This is a story of how a brain injured man and an unwanted dog became an unlikely but inseparable duo.

Buster the dog - Boyes Turner Court of Protection Team

In July 2004, at the age of 23, Billy was a happy go lucky lad, working hard and planning his next holiday.

During a break from work, Billy was crossing a road in Hayes, Middlesex, to buy a newspaper. As he was crossing the road, a car was travelling at speed in a bus lane undertaking traffic. The driver did not see Billy until it was too late, thereby knocking him down.

As a result of the accident, Billy sustained serious multiple injuries including face and jaw fractures, a collapsed lung, fractured pelvis and severe brain injury. He was airlifted to hospital in London and put on life support in intensive care. The medical team thought that as his brain injury was so severe he was unlikely to survive.

However, much to everyone’s surprise Billy did survive. He underwent intensive rehabilitation and was finally allowed home.  It was only once he went home that his family realised that the brain injury had caused a serious change of personality. Gone was the laid back, reliable and cheerful lad. Instead Billy had behavioural problems, became bad tempered very quickly, and was completely unreliable. As a result of his behavioural difficulties Billy lost his job. This led to him self-harming and becoming depressed. He knew the accident had changed him and was frustrated that nothing he did seemed to change this. This remained the case until he met Buster.

A personal injury claim was pursued on behalf of Billy. As part of his claim, Billy was assessed as not having the mental capacity to manage his property and affairs. The Court of Protection appointed a professional deputy to assist him.

Once the personal injury claim had successfully concluded, Billy found himself with nothing to do each day and got increasingly depressed. His close friend mentioned that she volunteered at a dog rescue centre walking the different dogs and that he might like to go with her. They saw a barking, scary looking dog, which Billy’s friend said she would like to walk. This was Buster. Buster is a cross Staffordshire and English Bull dog.

Billy advised his friend that if she took the scary looking dog out then he would walk behind her, which is exactly what they did. Billy explained that on this first walk Buster was more like a monkey than a dog, as he attacked every tree branch he could.

After this, Billy visited the rescue centre and took him out regularly. He said he began to like him more and more. As a result, Billy bought Buster and took him home. After taking Buster to the vets to have him micro chipped, he discovered that Buster was aged about three and was part of a breed referred to as the nanny dog, as they look after the young.

Having Buster has given Billy’s life focus. They go for long walks and keep each other company. Billy says that Buster likes to sun bathe and chase cats. He has become an expert in getting through the fence in his parents garden and digging up their vegetables. He is very friendly and does not like to fight.

Billy explains that his attitude to certain situations, as a result of his brain injury, meant that when he was agitated or annoyed he would throw his arms around and shout a lot. This would frequently be directed at Buster. However, seeing the affect this had on Buster has made Billy realise how he was acting and has helped him to control how he reacts.

In describing Buster, Billy says, “he is my first ever pet and it brings a tear to my eye when I hear him yelp because he has hurt himself. Buster loves meeting people and is always pleased to see me. He has helped me learn to think before I react”.

Billy is a client of our Court of Protection team, headed up by Ruth Meyer, who deal extensively with all court of protection matters as well as private trusts covering the management of compensation awards.

Our team are highly experienced and advise on everything from one-off property and affairs matters to managing a compensation award in the best interests of a client.

When Alzheimer's or Dementia leads to a deputy

What happens if you have a relative who has been diagnosed with a degenerative brain condition? In particular, this could be an elderly relative who has been diagnosed with Alzheimer’s or Dementia.

Jim is aged 86 years.  He has never married and has no children. His next of kin is his older brother who is not resident in the UK.

As a result of erratic behaviour, Jim was placed into a care home for his own safety by Social Services.  He was then diagnosed with Dementia and Alzheimer’s.  Social Services advised his brother that Jim had lost capacity and was no longer able to manage his own affairs and that, for his own safety, he would need to remain in a care home for the rest of his life. They then advised that he would be required to contribute to his care fees and accordingly his house would need to be sold.

The only way forward was for an application to be made to the Court of Protection for a Deputy to be appointed to deal with Jim’s property and affairs on his behalf.

Following discussions with Jim’s brother, Ruth Meyer of Boyes Turner applied to the Court to be appointed as the Deputy and this Order was granted.

This means that the Deputy can arrange to sell Jim’s house and invest the money on his behalf.  It also means that she can ensure that all of his needs are met on a day to day basis, to include his contribution to the care fees.

This has given Jim’s brother peace of mind in the knowledge that Jim is in a safe environment, his needs are being met and his welfare looked after.

"Maternity Services in England" report published

The National Audit Office’s report “Maternity Services in England” indicates some improvement in the way in which maternity care is delivered. 

Unfortunately it seems this isn’t uniform across all Trusts with wide unexplained variations in the performance of individual trusts in relation to complication rates and medical intervention rates even after adjusting for maternal characteristics and clinical risk factors.

In 2011 as many as 1 in 133 babies were stillborn or died within 7 days of birth. Whilst lower than previously, compared with other areas of the UK, there is still room for improvement.

The level of consultant input on the labour ward has improved substantially but again not all trusts are meeting the recommended levels. Midwife numbers have also increased but are still not in line with the widely recognised benchmark for midwife staffing levels.

Experienced maternity and neonatal claims lawyer Susan Brown commented on the report:

“This report finds that maternity care accounted for one third of the clinical negligence budget in 2012-13.  This is because, when maternity care goes wrong, it can have very devastating consequences.  If a baby suffers a brain injury as a result of the failings in maternity care then the claim can be worth several million, because they will have a lifetime of additional care needs. There needs to be a continued drive to improve the safety of maternity care across all trusts so that these claims do not arise.  In the meantime sadly we are frequently contacted by families who have suffered poor maternity care, often with tragic outcomes”.

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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