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Former Senior Judge warns of risks with Powers of Attorney

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

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

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

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

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

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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Boyes Turner client

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