Making Decisions when Incapable: Court of Protection

Samantha Hamilton is a Solicitor and Head of the Private Client Department at Mullis & Peake LLP; she is also on the Office of the Public Guardian’s Panel Deputy list. This means that where there is no other suitable person to be appointed as, the Deputy the Court of Protection can appoint one of the 71 Panel Deputies to act. This is often in cases of family disputes, where financial abuse is suspected or where there are large sums of money to be managed. The last example will often be cases where there has been a large award of damaged for a personal injury or medical negligence. The Court of Protection prefers a professional deputy to be appointed to manage these large sums of money. We speak with Samantha about her role as a Court of Protection specialist and when people should seek a Deputy to act on their behalf.


Can you outline what outlines ‘the lack of mental capacity’ for an individual needing Court of Protection?

Under section 2 of the Mental Capacity Act 2005 “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.” This can be a permanent or temporary lack of capacity, so there will be cases where a person recovers capacity and the Deputy is discharged.

Lack of capacity can be caused by an illness, such as mental illnesses, dementia or a stroke, or by an accident or injury. Some never have capacity as a result of an injury at birth or because they are born with a learning disability. Others acquire an injury or develop an illness during the course of their lifetime. In the latter cases, the Court of Protection will not need to appoint a Deputy if the person has a valid Power of Attorney. I encourage everyone, of whatever age to consider making a Lasting Power of Attorney to ensure that they appoint the person or people they would wish to act for them in the event of incapacity.

I often give seminars to local groups, charities and staff training. At one of the groups, one of the attendees likened a LPA to a fire extinguisher – you buy it hoping you will never need it. This is a perfect analogy.


What challenges do you face when acting for a case under Court of Protection and how do you overcome this?

Acting as a Deputy in Panel cases is challenging, as you rarely have much information until after you are appointed. It is a case of rapid assimilation of information about the person’s finances, care needs and personal situation. It also means the Deputy can be dropped into the midst of a family dispute, or have to act quickly to secure assets that may have been misappropriated. Every case is different, which makes the work interesting, but it is important to tailor the approach in each case to the client’s particular situation.

It is important from the outset to make it clear to all other parties that my sole responsibility is to act in the best interests of my client. I will not “take sides” and must remain independent as far as possible. It is also important to be sympathetic in some circumstances, but in others assertiveness is required. The ability to adapt the approach depending on the circumstances is a vital skill.

It is rewarding to be able to make a difference to the client’s life and to ensure that they receive the appropriate care and that their financial situation is secured.


How do these cases differ to your alternative Private Client work and how do you adapt to this change?

I specialise in Court of Protection work, but I have dealt with other Private Client work, such as Wills, Probate and estate planning. Whilst the more common types of Private Client work involve you in the client’s personal affairs, acting as Deputy embroils you in every aspect of their lives, from medical issues, management of carers, financial budgeting and household management.

It is important to recognise the importance of the work you do in every aspect of the client’s life. There is often more urgency involved in these cases and crises occur even for the clients with the most straightforward of circumstances. It is vital that a Deputy can cope with this, both in terms of time and the ability to deal with a wide range of issues.

We work closely with Social Services, the NHS, care providers and other organisations to ensure that the client has all the help and support they need.

Having a team of experienced staff who are able to assist is imperative, as is a list of reputable and reliable contacts able to deal with the various issues that arise each day. This can range from burst pipes and roof damage by storm(s) [Doris], to finding emergency carers or liaising with medical staff and police to track down a vulnerable missing person using my access to bank transactions. This knowledge and these contacts and skills can only be built up with time dedicated to this type of work.


What do you think makes a suitable Deputy for Court of Protection? What should potential clients look for in someone who will be acting for them?

A Deputy needs to have the time, expertise and knowledge to be able to manage every aspect of the client’s affairs. In many cases a family member will be able to act as Deputy, as long as they recognise the duties and expectations of the role. However, where the family is fractured, or where the finances to be managed are complex, an independent professional may be more suitable.

Anyone appointed as Panel Deputy has been assessed as being suitable to act, having the relevant skills, knowledge and expertise. The appointment is made following an application, interviews and Disclosure and Barring (DBS) checks and is monitored by regular audits and supervision by the Office of the Public Guardian. Therefore, potential clients would be secure in looking for assistance from Panel Deputies.


What considerations must be made when making a statutory will on behalf of someone else?

A Statutory Will can be made where the Court of Protection agrees that it is in the person’s best interests to create a will, or amend an existing will. The Court needs to be persuaded that making the Will in a particular way is likely to be what the person would have wanted, if they had capacity. The Court examines the person’s finances, family situation and past behaviour to determine what the Will should include.

Some families conclude that the intestacy rules are sufficient to deal with the person’s estate, so no application for a Statutory Will is required.


In regards to the above, what common misconceptions can clients have when seeking Court of Protection?

Clients may be concerned about the involvement of a Court, but are often reassured when it is explained that most applications to the Court of Protection are made without a hearing. However, many potential deputies underestimate the responsibilities of the role and are concerned about the requirement to report on all financial transactions on an annual basis. At Mullis & Peake LLP we are able to assist Lay clients with the completion of the annual returns to assist with this duty.


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