Personal injury trusts news

 

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

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.

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 Personal Injury 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.

Oakland's Junior School win prizes for road safety project

Children from Oaklands Junior School in Crowthorne worked hard and had fun learning about road safety during this year’s Road Safety Week campaign (November 20-26, 2017).

Their challenge was to think about how to make the roads around their school safer, and to create a poster promoting road safety. 

The national awareness week is the flagship event of Brake, the road safety charity, and has been running for 20 years. The theme, Speed Down Save Lives, was chosen because speeding remains a huge problem in the UK; the risk of injury increases massively with impact speed, and speeding is a factor in nearly a quarter of fatal road crashes in the UK. 

Local Brain Injury Group member firm Boyes Turner supported the school’s activity and got involved in judging the poster entries and awarding prizes.

“We work with families badly affected by avoidable accidents all the time, and campaigns like this are a great way to get the message out there that we can all do a bit more to make our streets safer and reduce accidents, ”

said Claire Roantree, Partner at Boyes Turner. 

“The creativity of the children never fails to impress, and demonstrates that they’ve had fun learning about a very serious message.”

 

The winning entries each received WHSmith vouchers, and all children taking part received a fluorescent pencil.

 

“Road Safety Week is about raising awareness that will keep everyone alert and safe on the roads. If we can make the message fun, we can make it last”

Sally Alexander, teacher at Oaklands.

 

The Brain Injury Group is a national network of specialist brain injury lawyers and support services. If you have been affected by brain injury visit braininjurygroup.co.uk for help and signposting to services.

Q&A with the Court of Protection team

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

Ruth Meyer

Ruth qualified in 1990 and is a partner at Boyes Turner, heading up the Court of Protection group. Ruth has considerable experience in Trustee and Deputyship work and particularly in acting for clients who have suffered profound injury resulting from the negligence of others.

Her memberships include the Law Society’s Probate Section, the Society of Trust and Estate Practitioners and Solicitors for the Elderly. She is also a panel member of Mencap.

In 2013 Ruth was ranked as a leading UK Court of Protection Solicitor in the Chambers Guide to the UK Legal Profession and is described as caring ‘passionately about her clients’ welfare’ in the Legal 500.

  • How much variety is there in your work?

    The work within the Court of Protection team is highly varied. My day changes from day to day. Each family is unique and we offer a very bespoke service to meet the needs of clients. I manage deputyships for people who do not have sufficient capacity to manage their finances as well as private trusts for clients who do have capacity to manage their finances but remain vulnerable. We also deal with the purchase and adaptation of properties, the employment of carers and case managers as well as therapists. We purchase equipment and ensure vat exemption forms are completed as well as dealing with annual accounts, tax returns, benefits and the investment of funds though financial advisers. In between all this many one off issues appear and in the past we have had to deal with properties that have flooded, emergency vet fees for a much loved family pet and arson attacks. The list can go on but it certainly adds to an eventful day! However, behind all this I know we have clients who are worried and need to know that they have professional help in sorting out some very significant issues.
     
  • What do you see as the major issues/ trends in Court of Protection today? 

    I think it has become harder over the years to open up a deputyship or trust bank account. It must be very difficult for non–solicitor deputies. I have built up a good working relationship with two local banks who offer an excellent service and who will immediately sort out matters in the unlikely event of something going wrong. This is so important as it can be really stressful if you cannot access money and funds are required urgently for care or for rent.In addition I have noticed a more paper based approach as there are many forms to complete in order to obtain a deputyship. Years ago the Public Guardianship Office (as it was known then) would assign a case manager to every single file and a deputy could speak directly with the case manager to obtain some additional support on a matter that may not be straightforward.In addition, previously a visitor from the court used to visit the client each year and I would always coincide my annual visit at the same time so that we could discuss any issues together and how they could be solved. Unfortunately such visits are now randomly assigned and may only be once every three years, although on occasions I have contacted the OPG to request a visit for a vulnerable client that urgently requires it and this has been arranged.
     
  • What are the toughest problems and decisions you handle? 
     

    Some of the hardest problems relate to the finances for children who have been damaged at birth and have received a ‘substantial’ compensation award. To most people such awards do appear ‘substantial’ but the costs of therapies, adapting properties and appealing to a Special Educational Needs Tribunal can be high and expenses need to be carefully managed and budgeted for, as well as being in the child’s best interest. The difficulties arise when families want money to spend on matters that the award was not designed for such as an expensive family holiday or, contrary to this, the family do not want to spend any of the money mainly because they have got to a point in which they do not want carers or therapists in their home and wish to protect their privacy.Both issues can be difficult to manage and require diplomacy and tact. With holidays I usually explain to the family that we can pay for the additional costs of taking a disabled child on holiday as such expenses would cover the need for a larger room or specialist transport. These costs can be met from the award of compensation but if they have not been included then they will need to be paid from another ‘pot’ of money within the award so effectively we would be taking money  which has been reserved for something else.In respect to the privacy issue I have to be mindful that families do require privacy and maybe we could look at alternative solutions such as reserving a room in a local sports centre for physiotherapy or having carers who visit daily rather than live in. In respect to such matters it is better to build up the relationship with the family first and then gradually introduce carers and therapist’s so that a relationship of trust is established and the family can then see how beneficial the care and therapy is.

  • What attribute or experience do you look for in solicitors joining your team? 
     

    When looking for team members I value common sense and empathy above any other attribute. Most of our clients are vulnerable and their families may also require additional support and understanding. A solicitor needs to be able to ensure that clients feel comfortable so that they are able to ask as many questions as they want. Visiting a solicitor for the first time can be a worrying experience for clients who do not have much contact with solicitors. I usually find that as soon as clients have met me face to face they feel much more relaxed and this assists in giving advice on the way forward and building up a long term relationship.

  • Do you have any advice for anyone interested in qualifying into Court of Protection?
     

    For anyone interested in joining a Court of Protection team I would advise them to begin with the basics! They need to make sure that they have a thorough understanding of the Mental Capacity Act 2005 and the Code of Practice as this forms the basis of much of the work we do. I would then advise obtaining a working knowledge of how deputyship accounts are completed, the various forms to use as well as an understanding of income tax and who to approach for independent investment advice. Working in a Court of Protection team covers a variety of aspects and you need to have a little knowledge about a lot of things and know where and when to look things up!

  • What do you like most about working in the Court of Protection team?
     

    I really enjoy heading up the Court of Protection team. I started as an assistant solicitor with a background in Wills and Probate and eventually dealt with everything to do with Court of Protection work. This gave me a solid background and understanding of issues and now I act as deputy running a team of seven. Each team member is able to offer something different and we work together on matters so that we can offer the best possible service and advice. We use each other’s strengths to focus on applications, research matters and prepare detailed budgeting forecasts but behind all this are a team that cares passionately about the work they do and will always pull together to get the best for clients.

How much should family members be paid for the care they provide?

In Court of Protection cases and Personal Injury Trust cases payment can be made to family members for the care they provide to the person who suffered injury and this care is paid from the compensation award. This payment must be approved by the Court of Protection if payment is made to the deputy and by the trustees in respect to Personal Injury Trusts. 

It can be difficult to decide how much to pay for care as no amount really covers the additional work that family members provide but we have to have a starting point. I usually look at the care report in compensation cases as this may refer to a gratuitous amount recommended for family care and I then look at the final settlement and what was recovered.

Family members can be paid a sum free of tax and national insurance and approval to this is sought from HMRC in the form of a “Carer’s Certificate”. HMRC have issued guidelines on this in ESM 4016.

In the recent case of HC [2015] EWCOP29 (SJ Lush) payments for care were specifically discussed. In this case S J Lush allowed a commercial rate for care discounted by 20% because payment was not taxable, although usually in PI claims the deduction is 25%. He also provided for annual increases in line with the Annual Survey of Hours and Earnings (ASHE) 6145 which relates to carers and home carers.

The amount approved in this case was £1,500 per month for the deputy and £100 per month for his sister, although S J Lush noted that the payments were significantly less than any alternative care package that might be available.

This case provides useful guidance on payments to family members for care which is a selfless and all encompassing job that is often overlooked.

The Court of Protection: A History

Here at Boyes Turner, we have a rapidly expanding and developing Court of Protection team which is headed by the Court of Protection Partner and professional deputy, Ruth Meyer. The team is now made up of six members and is always busy with new and existing clients. We are not alone in this. Across the country there are Court of Protection teams working hard to meet an ever increasing demand. So where has this demand come from? And why is there such a need for these specialist Court of Protection teams?

The Masters in Lunacy

To answer these questions, we need to look at the history of the Court of Protection and the changes it has undergone in recent years. The Court of Protection as we now know it was created in 2007. It does however continue the much more established “…inherent jurisdiction of the Crown to manage the property and affairs of persons who lack capacity…” This jurisdiction can be traced back hundreds of years, although the first sign of a specialist court came with the appointment of two ‘Commissioners in Lunacy’ who were appointed in 1842 by the Commissioners in Lunacy Act.

At this time, a person could come within the jurisdiction of the Lunacy Office if they were ‘a lunatic, so found by inquisition.’ Not entirely unlike the process today, an inquisition was requested in the form of a petition which was usually presented by a relative. This petition had to be supported by an affidavit of kindred and fortune and two medical affadivits. The case could then progress to a full inquisition, at which the alleged lunatic could request a jury of up to twenty-three men. The inquisition was usually held in the town or village in which the alleged lunatic lived, and as it was a public matter it was open to all to attend.

The case of William Frederick Windham is a good illustration of a case that would have been heard in the early days of the Lunacy Office. Windham inherited a considerable estate and income on his 21st birthday following the death of his father some years earlier. Just three weeks later he married a woman, described as having a notoriously profligate character, lavishing her with jewellery and promising her an income that comprised of nearly a third of his own annual income. Perhaps unsurprisingly, a petition was brought by 15 of his relatives applying for an inquiry as to his state of mind.

The inquiry was a showcase of contemporary legal talent and lasted for 34 days, the longest lunacy inquisition in legal history. Windham’s life was picked apart in the closest of detail, with the seventeen poached eggs he ate for breakfast and his obsession with trains called into question.

A jury found by a majority that Windham was of sound mind, although seven of the twenty-three did consider him to be mad. Windham was ordered to pay the costs of the trial, as the petition had been brought in good faith, which is a principle that still applies today.

Over the following century, there were developments in the power that the Masters in Lunacy had and the way in which they administered their work. By 1947, there was an Office of the Masters of Lunacy which was well established and constituted an office of the Supreme Court. It was in 1947 that the Office was renamed the Court of Protection.

Although the Court of Protection progressed significantly from the days of the Office of Lunacy, it remained limited in its power and ability to protect the vulnerable in society. A key reason for the inability of the Court of Protection to operate effectively was that there was a significant separation between the structures for welfare and financial matters. Financial matters were largely dealt with by civil servants on behalf of the Master in administrative arms of the Court of Protection. However, welfare decisions could only be made in the High Court. This was expensive and complicated and excluded all but the most exceptional of cases. The result of this was that the most vulnerable people in society were increasingly disconnected from the justice system, and this was a situation that could not continue.

The Significance of the Mental Capacity Act (2005)

In 2005, the Mental Capacity Act (MCA) was introduced as a way of protecting vulnerable people who are unable to make decisions on their own behalf. The five principles of the MCA 2005 are the foundation for all work carried out by Court of Protection teams, and they are:

  1. A person must be assumed to have capacity unless it is established that he lacks capacity.
  2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
  3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
  4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
  5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

The MCA 2005 created the new Court of Protection and the Office of the Public Guardian, with the aim of creating “a unified jurisdiction, combining that of the old Court of Protection in relation to property and financial affairs with the personal welfare jurisdiction exercised by the High Court judges of the Family Division.”

The Court of Protection as created by the MCA 2005 is a specialist court of record with the same rights, privileges and authority as the High Court. It now has the power to make specific decisions, or appoint others (deputies) to make decisions, for people who do not have the capacity to make decisions for themselves. These decisions could be in relation to property, financial affairs, health and personal welfare.

The Court of Protection Today

After an initial period of transition, the Court of Protection is now well established and provides security to an increasing number of vulnerable people. The improved structure of the Court combined with an increased awareness and understanding of the importance of protecting vulnerable people in society has meant that there has been a significant increase in the work of the Court of Protection and of Court of Protection departments across the country. In 2012 alone there were 23, 538 applications to the court with 22,797 orders made. The orders made by the Court of Protection can be made on any number of issues, from investing an individual’s funds to deciding whether or not a statutory will can be made.

So from the Lunacy Office to the Court of Protection, the progress continues and the Court is able to effectively protect an increasing number of vulnerable people every day.

With thanks to Senior Judge Denzil Lush for his insightful and informative contributions which have been incorporated into this article.

Terrell, M. 2009. A Practitioner’s Guide to the Court of Protection. 3rd Edition. Chapter 2 – The New Court of Protection.

Re MB [2005] EWCA Civ 1293 – found at

https://www.lawtel.com/UK/FullText/AC0109786CA(CivDiv).pdf

Lush, D. 1998. ‘The Windham Inquisition’ – an article written for the Legal Executive Journal

Lush, D (as n.3 above)

Re MB [2005] EWCA Civ 1293 (as n.2 above)

Terrell, M. (as n.1 above)

Terrell, M. (as n.1 above)

 The Mental Capacity Act 2005

 Court of Protection Report 2009. Judiciary of England and Wales. Foreword by Senior Judge Denzil Lush

Figures taken from ‘An Introduction to the Court of Protection’, MBL Seminar presented by Claire van Overdijk. Original figures taken from –

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/217494/judicial-court-stats-2011.pdf

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