The ins and outs of the Court of Protection

On the 30th March 2017 the Ministry of Justice produced statistics for various branches of the Courts. Of particular interest are the statistics released in relation to the Office of the Public Guardian and the Court of Protection. They give some insight as to how we are all dealing with some of the challenges that aging and vulnerability bring, and into particular challenges the Court of Protection is currently facing. 

The Court of Protection (‘the COP’) is a specialist branch of the Family Division of the High Court. It is responsible for making decisions about the finances, welfare and healthcare treatment of people who have lost mental capacity.

The decision making role of the COP is supported by the Office of the Public Guardian (‘the OPG’), which has two principal responsibilities. One is to monitor and supervise the conduct of Attorneys and Deputies who manage the finances for each vulnerable individual (‘P’) who is not in a position to manage their own finances. The second principal element of their workload is to deal with the registration of Powers of Attorney, and over time this has also extended to encouraging people to make Lasting Powers of Attorney (LPAs) to avoid the COP involvement, and to facilitate people making their own choices while they are able to.

The difference between an Attorney and a Deputy is that P has chosen the Attorney who is to act on his or her behalf while they are able to make that decision, and that choice is recorded in a Power of Attorney. The COP will have authorised a Deputy to act if P did not make a valid Power of Attorney while they had the capacity to do so.  So, to the numbers …..

Are we leaving LPAs too late?

In 2008 the OPG received 52,494 Lasting Powers of Attorney for registration. In 2016 this number had increased to 590,593.

The OPG has analysed these figures further. In 2016 38% of the LPAs were created by men, and the most common age group for those who had signed the LPAs which were registered was 81-90 years.

It is a little worrying that so many people are leaving it until they are older to put LPAs in place.  There are some important choices to be made about who should act as Attorney, how they should act, whether there should be replacement Attorneys, and whether there are limits or restrictions that ought to be put in place as to when and how the Attorneys are able to act.  Inevitably, being older means there is a greater risk that ill health means people will not have sufficient understanding to validly sign the LPAs.  If a person does not have sufficient capacity to sign an LPA, it may be necessary for the COP to appoint a Deputy instead. This is unfortunate as it can limit the choice which that person has about who helps them manage their money.

Deprivation of Liberty issues on the rise

In the COP, 29,711 applications were made under the Mental Capacity Act 2005 during 2016, an increase of 11% over the 2015 period. 

The most significant area of growth for applications to the COP continues to be in relation of Deprivation of Liberty issues. The increase can be attributed to a Supreme Court decision in 2014 referred to as the ‘Cheshire West Case’.

A Deprivation of Liberty arises if a person who lacks capacity (‘P’) is limited in where they can go, or what they can do, even if the restrictions are in their best interests and intended to safeguard their physical or mental health. The Cheshire West case extended the scope of the Deprivation of Liberty issues to people living in supported accommodation, where a high degree of control over their activities and movement was or could be exerted.

This resulted in a substantial increase in the number of cases going before the COP, all of which had a high degree of priority.  It is fair to say it has had a significant impact on how efficiently the COP has been able to operate since 2014.

The high number of Deprivation of Liberty cases going to the COP also means that more and more members of the public with little or no previous knowledge or experience of the law are being involved in the proceedings on the basis that they are the friends or family of P. This can be worrying for such friends and family members. However, if you did receive such a notification, there is no need to worry. Fully Accredited Members of SFE will be able to explain the nature of the process, and the extent to which you have to become involved, if indeed you wish to become involved at all.

The recent Law Commission proposals recommending urgent changes to the Deprivation of Liberty legislation may be welcomed by the COP from the standpoint of the consequent reduction in the workload of Court of Protection.

Phillipa Bruce Kerr is a Partner who qualified in 1984 after completing her Training Contract with a firm based in London’s West End. She moved to Harrison Clark Rickerbys from Foot Anstey in 2008. She is a full member of STEP and Solicitors for Elderly, a member of the Law Society’s Private Client Section and a Dementia Friends Champion. She is also the Gloucestershire Regional Co-ordinator for SFE, and member of STEP’s Mental Capacity Special Interest Group.

She has advised on Estate Planning issues (Wills, Powers of Attorney and tax planning) for a range of clients including business owners and farmers. She has always worked with Older and Vulnerable Clients and was a Panel Receiver, when there were such things. She is both Deputy and Attorney for clients who need assistance in managing finances. She has been involved in assisting to draft some of the SCOPE information sheets on Trusts and Wills, and has spoken at their National Conferences.

Phillipa works with Care Professionals explaining the practical implications of legal documents and the Mental Capacity Act. She also works closely with older and vulnerable clients and their families in strategies to support decision and delegated decision making. She has an increasing workload of disputes over financial and health and welfare issues which are adjudicated by the Court of Protection. She believes clear explanations and practical solutions are the best way to assist clients.

In their spare time she and her family are currently supporting their perplexed dog who is constantly outwitted by the Pygmy Goats that have arrived recently. The challenges and rewards of pet ownership never cease.

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