Protecting those who lack capacity – The Court of Protection – Be Aware! Beware!

Topics covered: Ridouts professional advice

More and more service users are being identified as lacking capacity despite the legal assumption to the contrary.

At Ridouts we are seeing many cases which demonstrate a serious lack of understanding about the effects of a lack of capacity.  People should not be so labelled unless and until there has been a detailed and credible mental capacity assessment with appropriate professional input.

If a person is assessed to be lacking capacity, then only other people with an appropriate legal authority may exercise any management over that person’s assets.  Those ‘other people’ who have such authority to cover financial and asset management are the holders of a historic Enduring Power of Attorney (executed with capacity and registered) or a Lasting Power of Attorney (executed with capacity).  If there are no individuals appointed with such an authority the only person able to manage the incapacitated persons affairs will be a “Deputy” appointed by the Court of Protection.  Nobody else has such a power; not a solicitor, not a local authority, not the care provider and certainly not family members.

Increasingly there may be requests for access to funds from others, particularly family members.  The simple answer to this is a polite decline.  Anyone who gives away the funds of another without proper authority will be liable to account for those assets (most usually money) irrespective of whether or not there is a realistic right to recover from the recipient.  Always demand a copy of the authority to access money and take legal advice.  Not patrolling the protection of service users’ assets (including money) may well be seen as financial abuse and infringe a number of CQC Essential Standards.  Do not take risks.

This serves to introduce the Court of Protection.  This court is a Senior Court which may be very useful not just to protect those who lack capacity but also to support carers who feel unreasonable pressure to interfere in the affairs of service users.

Engagement of the Court of Protection is essentially non-adversarial (although some disputes are very bitter).  The Court is invited to consider appropriate steps, if any, to protect the interests of those who lack capacity.

Anyone can apply to the Court of Protection provided that they are over 18 years of age.  The usual application is to be appointed Deputy.  A care home provider with concerns about persistent and inappropriate attempts to interfere in the financial affairs or care management of an incapacitated person may make such an application.  This will be particularly appropriate where a family member is behaving in a particularly aggressive or offensive way and simply will not take no for an answer.  There will be a reluctance to appoint care home managers as Deputies but the application will at least engage the Court as an objective arbiter and protector.

Many families simply do not understand that they are not entitled to take control of the affairs of vulnerable and incapacitated loved ones.

Remember, however, that the Court is a court of law and must be respected as such.  This is not a division of central Government or a local authority.  The Court represents the law.  This is demonstrated by a recent case, salaciously and inaccurately reported in the Daily Mail on Wednesday 24 April 2013, where a very uncooperative family member was committed to prison for contempt of court as a result of disgraceful conduct, which may well have arisen in part by a lack of understanding of the real nature of the Court.

Useful as the Court may be, the formality of proceedings and respect for its authority must not be understated.  The Court is very precise and very focused on the principles of the rights of those lacking capacity.  Most of those who appear are public bodies, of one category or another, who are largely unconstrained by concerns to control expenditure on legal costs.  Given that many cases have many parties this litigation can prove very costly and difficult to control.  We have seen cases where there has been little real dispute but uncontrolled costs have escalated into thousands of pounds.

The Court of Protection is an essential protector of those unable to defend themselves.  It is a very useful resource to support those faced with strong dilemmas arising from day to day care issues.  However caution must be exercised to avoid rising administrative and litigation costs which may well be out of proportion to the value of individual placements.

Be aware of the availability of the Court of Protection; BUT, beware of unexpected costs of involvement.

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