Recent days have seen prominent and harsh criticism in the media of the Court of Protection and Public Guardian. These two bodies are responsible for the property and affairs of some of the most vulnerable people in society, those who lack capacity to deal with these matters themselves. They therefore have a vital function to perform and it is of the utmost concern to a civilized society that these public bodies do not appear insensitive, secretive, bureaucratic and inefficient.
Solicitors for the Elderly represent over a thousand solicitors who deal with this area of law on a daily basis. They share the concerns and frustrations of their clients and often act in their own right as deputies for adults and children who lack capacity. Various individuals in our Trusts and Taxation and Lifetime planning team are part of Solicitors for the Elderly.
The legal and administrative system provided by the Mental Capacity Act 2005 is not a perfect one by any means. But it rests on a powerful premise. No one person has the right to take the property of another person who lacks capacity unless either that person has authorised this in advance, through a lasting power of attorney or the Court of Protection has given that authority. Not everyone has had the foresight or desire to plan ahead with a lasting power of attorney, especially as the new forms require a degree of determination to complete. The Court must also deal with the property of children who will lack capacity, often where there have been compensation awards for catastrophic injuries. It deals with over 6,000 applications each year and it cannot just give authority every time someone asks for it. There has to be a procedure that shows that a person lacks capacity and that the deputy who is given authority is the right person to take on a great responsibility and that the interests of the person who cannot speak for himself are protected.
There is of course a difficult balancing act for any public body to perform. If it is too restrictive in what it allows, it is condemned for being paternalistic and bureaucratic; if it gives away authority without proper checks, it is condemned for being heartless. In reality it must also contend with limited resources which must be raised through fees and charges. These fees are significantly lower than they were in the past, and in the vast majority of cases the annual supervision fee charged by the Public Guardian is £175.
Difficult cases make for alarming headlines. But in the great majority of cases, the Court of Protection appoints deputies as a matter of course and close relatives are given a wide ranging authority to administer considerable assets. This usually extends to selling a person’s property and deciding where and how to invest money. The only safeguards are an insurance policy and the completion of a short annual report to the Public Guardian. Most cases are dealt with efficiently, through a simple paper-based procedure. And most cases do work reasonably well in practice.
This success – which is at odds with media criticism – avoids wider concerns that a system which is too casual in its approach allows the unscrupulous and the incompetent to cause a great deal of damage before it can be discovered. The Public Guardian is a separate body from the Court which has very limited powers of investigation and enforcement.
The Court of Protection meanwhile is a judicial body which is bound by rules which belong to a world where wealthy protagonists can litigate with no regard to how long they take or what costs they incur. Those cases that do go wrong, or where there are objections and different points of view in the family, are subject to a very different procedure that really is daunting as well as expensive. Cases move into a labyrinthine world involving forms and procedures that are daunting for lawyers, let alone concerned relatives. Cases frequently involve several opposing parties, solicitors, barristers, trial bundles and days in court where the costs are so great that there is a real disincentive to use the Court of Protection except as a last resort.
These are issues that the Court and aware of and members of Solicitors for the Elderly are engaged with both bodies, bringing constructive criticism to bear where it is helpful, and trying to share the concerns of its members and the wider client case they represent in providing better protection for those who cannot by definition protect themselves.
Rebecca Watkins who specialises in Court of Protection matters and is also a member of Solicitors for the Elderly said “The Court of Protection plays a central role in protecting the vulnerable from financial abuse. There clearly have been teething problems but Solicitors for the Elderly together with other professional bodies have been sharing their concerns and working to help resolve issues.”
If you are in a situation where you believe an individual lacks mental capacity and you would like advice please contact us.