Introduction
Welcome to the February 2016 Newsletters. Highlights this month include:
- In the Health, Welfare and Deprivation of Liberty Newsletter: Article 5, best interests and the COP; 16 and 17 year olds and deprivation of liberty; and the views of the Official Solicitor on ‘using and weighing’;
- In the Property and Affairs Newsletter: EPAs and gratuitous care; the CICA and the COP; and the perils of putting oneself forward as panel deputy;
- In the Practice and Procedure Newsletter: the transparency pilot and how to survive it;
- In the Capacity outside the COP Newsletter: the National Mental Capacity Action day and how to take part; capacity and organ donation; and legislative developments both sides of the border in Ireland;
- In the Scotland Newsletter: Scottish Government consults on a review of the AWI; two important MWC reports and an obituary of Ian McMurray
And remember, you can now find all our past issues, our case summaries, and much more on our dedicated sub-site here. ‘One- pagers’ of the cases in these Newsletters of most relevance to social work professionals will also shortly appear on the SCIE website.
Editors
Alex Ruck Keene Victoria Butler-Cole Neil Allen
Annabel Lee Anna Bicarregui
Simon Edwards (P&A)
Guest contributor Beverley Taylor
Scottish contributors Adrian Ward
Jill Stavert
Table of Contents
Attorneys and gratuitous care 2
Short note: history is still with us 4 Short note: procedural
differences between EPAs and LPAs – and advance notice of
Office of the Public Guardian: Practice Note on Local authority deputyship responsibilities 5
British Bankers Association Guidance on managing a bank account for someone else 5
Conferences at which editors/contributors are
For all our mental capacity resources, click here.
Re WP and EP [2015] EWCOP 84 (Senior Judge Lush)
Deputies – Property and Financial Affairs
Summary
In this case the Senior Judge had to consider whether to give retrospective approval to attorneys (two of Ps’ children) under an EPA who had paid themselves (and their sister) £150 per month for care and travel expenses in helping to look after their parents.
The Senior Judge referred to his recent decision in Re HNL [2015] EWCOP 77, which dealt with the remuneration of deputies and it is clear that the same principles apply to attorneys.
If the EPA (or LPA) does not provide for remuneration of the attorney, then the attorney cannot be remunerated for performing the duties of an attorney as such unless the court makes an order (see paragraph 15). In this case the Senior Judge declined to make an order for remuneration for the performance of the duties of an attorney as such (and it is not clear that such was sought). This was on the basis that when the power was created the parties did so under the assumption that the basic duties of an attorney would be performed for no remuneration (see paragraph 39).
He did, however, approve the payments that had been made to the attorneys both in the past and for the future for care and travel (see paragraphs 40-47) on the basis that the care had been rendered and at commercial care would have been much dearer. He remarked in relation to travel, however, such claims should be made on
the basis of a discounted AA rate rather than the full rate (45p per mile) as that applied to commercial organisations (see paragraph 31).
He made no ruling in relation to the payments to the sister which, presumably, would have to stop.
Comment
This case underlines the need for lay deputies or attorneys who want to pay themselves or members of their families a gratuitous care allowance, to apply for approval and the need for those drafting powers to consider carefully what should be said about such allowances or remuneration as, clearly, the attorneys, who had behaved impeccably, rather resented the court’s and the OPG’s input.
PVJ v CICA [2015] EWCOP 87 and [2016] EWCOP
7 (Charles J)
Deputies – Property and Financial Affairs
Summary
This was P’s appeal against part of the order of Senior Judge Lush [2015] EWCOP 22 (see our earlier report here). In this case P was the victim of crime as a baby that left him seriously brain damaged. No one was prosecuted but the possible perpetrators were members of P’s family (mother, brother and mother’s partner).
P’s mother and subsequently a local authority deputy on his behalf made an application for compensation under the criminal injuries compensation scheme. After something of a struggle the CICA made an award of approximately £3million.
The CICA, pursuant to the scheme, required that the award be held on trust that excluded as beneficiaries the possible perpetrators. The CICA took the view that such a trust had to be made by the Court of Protection as P would be the settlor of the trust and P’s deputy did not have power to make a settlement because section 20 (3) MCA prevents a deputy being given power to settle P’s property.
Senior Judge Lush had agreed with the CICA but Charles J allowed P’s appeal (see paragraphs 63- 67 and 81) on the basis that P did not become entitled to any property as the scheme required the award to go directly to trustees in such cases. Charles J remarked on his surprise that CICA had argued the contrary as its practice in relation to capacitous applicants in such circumstances was to set up trusts without the applicant being named as the settlor.
Thus, in such cases the Court of Protection is not required to approve the trust and indeed Charles J endorsed the Senior Judge’s view that the Court of Protection does not have to approve the settlement of the application (see paragraphs 72- 73 and 82) (although this was not the subject of the appeal).
The second of the two judgments resulted from Charles J’s invitation to the parties to negotiate about various provisions in the proposed trust. In particular he was concerned that CICA appeared to have taken a somewhat inflexible approach to the total exclusion of the mother from benefit in circumstances where P had lived with and been cared for by his mother from an early age (after a brief period in care). He also invited the parties to agree standard terms for the appointment of a deputy where a CICA application is envisaged and to consider whether a Peters undertaking was required in the trust instrument (an undertaking
not to apply for certain benefits) as the trustees would not have the power so to do.
Happily agreement was reached and the appointment and terms of the trust are annexed to the second judgment. The former made it clear that the deputy would have power to bring, negotiate and accept the award and any trust deed. The latter excluded P’s mother from potentially benefiting only from a distribution if P pre deceased her. It also (in the light of the judge’s comments in the first judgment at 101-
103) did not contain a Peters undertaking.
Comment
The judgment does not make comfortable reading for the CICA as it contains some criticism of what the judge considered a somewhat inflexible approach. The approval of standard documents should make these cases easier and quicker to deal with in the future and the fact that the Court of Protection does not have to be involved will save expense.
The need to be whiter than white Re RP Z [2016] EWCOP 1 (Senior Judge Lush) Deputies – Property and Financial Affairs
In this case the Senior Judge had to consider who to appoint as P’s deputy in circumstances where there was conflict between the children of P’s first marriage (the respondents) and the child of his second marriage (the applicant).
The applicant proposed her solicitor. The respondents objected on the grounds that the applicant’s solicitor would not be seen to be sufficiently independent and there was an appearance of bias. Also, P’s affairs were complex and the applicant’s solicitor did not have
experience of investigating the financial affairs of a person with multinational business interests. The respondents, therefore, proposed a panel deputy if one of the respondents or P’s accountant were found unsuitable.
The Senior Judge found that it would be inappropriate to appoint one of the respondents as there was a need to investigate their handling of P’s affairs. He also rejected the appointment of the accountant as he had not been efficient in his handling of P’s affairs.
Thus the issue was whether to appoint the applicant’s solicitor or a panel deputy. The Senior Judge chose the latter (see paragraphs 41-45). Firstly because of the appearance of bias and the need to ensure that a deputy is and is seen to be independent referring to the judgment of Judge Cardinal in EG v RS JS and BEN PCT [2010] EWCOP 3073 [2010] COPLR Con Vol 350:
"It is just not possible to act as an honest broker on one hand and firmly on the side of one party alone on the other. It should have been clear even then to EG that she simply could not realistically pursue the application. Later on in his submissions to me Mr O'Brien posed the question what would an ordinary member of the public think? The obvious answer is that the appointee has a prejudice, a bias in favour of his/her client."
The second reason was that P’s affairs needed the attention of a deputy from a firm experienced in investigating white collar crime and bringing proceedings for the recovery of misappropriated funds, and which has access in-house to international and corporate expertise, if necessary.
Short note: history is still with us
In Re AC [2016] EWCOP 3, the Senior Judge, when considering who should be P’s deputy in a very long standing matter, remarked on the fact that P was probably the last person alive who had been the subject of a Lunacy Inquisition. The case also vividly illustrates the advances that have been made in the care of those with mental illness as P had been the subject of both electric shock treatment and frontal lobe surgery.
Short note: procedural differences between EPAs and LPAs – and advance notice of costs changes
In Re KJP [2016] EWCOP 6, Senior Judge Lush reminded practitioners that, although the court must confirm the revocation of a registered EPA, there is no need for it to confirm the revocation of a registered Lasting Power of Attorney, in respect of which section 13(2) of the Act expressly provides that "P may at any time when he has capacity to do so, revoke the power." As the Senior Judge recalled, this procedural difference between EPAs and LPAs came into force on 1 October 2007, and the policy considerations underlying the change in procedure are discussed in paragraphs 7.42 and
7.43 of the Law Commission's report number 231, Mental Capacity, published in 1995. Paragraph 7.43 concluded with the following statement: "We therefore think it necessary to stress, by way of an explicit provision, that a donor should always retain the power to revoke his or her [LPA]."
The Senior Judge also reminded us that, if a person has the requisite capacity to make the decision, “whether it was wise of him to revoke the EPA and to make an LPA in its place is irrelevant, as is the extent to which he may have
been vulnerable to exploitation.” It would only have been the consequences of exploitation that would have grounded an intervention by the court if (for instance) it amounted to the exercise of fraud or undue pressure to bring about the creation of an LPA (s.22(3)(a) MCA 2005).
Senior Judge Lush also flagged up the “concern amongst property and affairs lawyers that rule 156 encourages unnecessary litigation at P's expense, and [that] they have been lobbying for a rule change that distinguishes between costs in non-contentious cases, which account for 93% of the court's workload, and those in contentious proceedings.” A consultation on changes is very likely to be launched within the next few months and we will bring you news of this as soon as we have it.
Office of the Public Guardian: Practice Note on Local authority deputyship responsibilities
In this practice note (Practice Note no 01/2016, 14/1/16), the OPG expresses concern about the possibility of Local Authorities contracting out some of their functions as property and affairs deputies.
The OPG reminds Local Authorities that the duties of a deputy cannot be delegated and, whilst not ruling out using external providers to carry out some of the administrative functions of a deputy, counsels caution to prevent the risk of financial abuse.
The note ends with a stern warning as to the risks of reputational or financial risk to the Local Authority that did not fulfil its duties
British Bankers Association Guidance on managing a bank account for someone else
The British Bankers Association has recently published guidance (for consumers) on managing a bank account for another, including by way of an ordinary, an Enduring, or a Lasting Power of attorney. Notable by its absence is any reference to the position in relation to a foreign (which for these purposes can include a Scots) power of attorney, which remains a very thorny area.
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Conferences at which editors/contributors are speaking
International Protection of Adults
Alex and Adrian will be participating in a seminar at the British Institute of International and Comparative Law on 11 February on Hague 35 and cross- border matters. More details are available on the BIICL website.
VOICES project
Alex will be chairing a session at the opening conference of this innovative
Editors
Alex Ruck Keene Victoria Butler-Cole Neil Allen
Annabel Lee Anna Bicarregui
Simon Edwards (P&A)
Guest contributor Beverley Taylor
Scottish contributors Adrian Ward
Jill Stavert
project launched by the Centre for Disability Law and Policy at NUI Galway entitled Voices of Individuals: Collectively Exploring Self-determination
(VOICES). The opening conference is on Friday 26 February 2016 in Dublin City Civic Offices, Dublin 8. Confirmed Speakers include: Professor Gábor Gombos, Mr Rusi Stanev, The Honorable Kristin Booth Glen, Professor Michelle Anderson and Professor Christopher Slobogin. For more details of this project, and to book, see here.
Palliative Care Conference
Alex will be speaking on the practicalities and realities of DOLS within palliative care practice at the 11th Palliative Care Congress in Glasgow on 11 March. For details, and to book see here.
Safeguarding Adults in Residential Settings
Tor will be speaking about why capacity matters at this conference at the ORT House Conference Centre London on Tuesday 15 March 2016. For further details, see here.
Edge DOLS Assessors conference
Alex will be speaking at Edge Training’s annual DOLS Assessors conference in London on 18 March. Other speakers include Mr Justice Peter Jackson. To details, and to book, see here.
Advertising conferences
and training events
If you would like your conference or training event to be included in this section in a subsequent issue, please contact one of the editors. Save for those conferences or training events that are run by non-profit bodies, we would invite a donation of
£200 to be made to Mind in return for postings for English and Welsh events. For Scottish events, we are inviting donations to Alzheimer Scotland Action on Dementia.
ESCRC seminar series on safeguarding
Alex is a member of the core research team for an-ESRC funded seminar series entitled ‘Safeguarding Adults and Legal Literacy,’ investigating the impact of the Care Act. The theme for the seminars in the first year of this three years series is ‘Making Law’. The second and third seminars in the series will be on “New” categories of abuse and neglect’ (20 May) and ‘Safeguarding and devolution – UK perspectives’ (22 September). For more details, see here.
Peter Edwards Law Training Spring 2016
Peter has announced the spring series of his (rightly) very well-regarded series of training events on matters mental capacity and mental health related. For full details, see here.
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Editors
Alex Ruck Keene Victoria Butler-Cole Neil Allen
Annabel Lee Anna Bicarregui
Simon Edwards (P&A) Scottish contributors
Adrian Ward Jill Stavert
CoP Cases Online
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Alex Ruck Keene: alex.ruckkeene@39essex.com
Alex is recommended as a ‘star junior’ in Chambers & Partners 2016 for his Court of Protection work. He has been in cases involving the MCA 2005 at all levels up to and including the Supreme Court. He also writes extensively, has numerous academic affiliations and is the creator of the website www.mentalcapacitylawandpolicy.org.uk. He is on secondment for 2016 to the Law Commission working on the replacement for DOLS. To view full CV click here.
Victoria Butler-Cole: vb@39essex.com
Victoria regularly appears in the Court of Protection, instructed by the Official Solicitor, family members, and statutory bodies, in welfare, financial and medical cases. Together with Alex, she co-edits the Court of Protection Law Reports for Jordans. She is a contributing editor to Clayton and Tomlinson ‘The Law of Human Rights’, a contributor to ‘Assessment of Mental Capacity’ (Law Society/BMA 2009), and a contributor to Heywood and Massey Court of Protection Practice (Sweet and Maxwell). To view full CV click here.
Neil Allen: neil.allen@39essex.com
Neil has particular interests in human rights, mental health and incapacity law and mainly practises in the Court of Protection. Also a lecturer at Manchester University, he teaches students in these fields, trains health, social care and legal professionals, and regularly publishes in academic books and journals. Neil is the Deputy Director of the University's Legal Advice Centre and a Trustee for a mental health charity. To view full CV click here.
Annabel Lee: annabel.lee@39essex.com
Annabel appears frequently in the Court of Protection. Recently, she appeared in a High Court medical treatment case representing the family of a young man in a coma with a rare brain condition. She has also been instructed by local authorities, care homes and individuals in COP proceedings concerning a range of personal welfare and financial matters. Annabel also practices in the related field of human rights. To view full CV click here.
Anna Bicarregui: anna.bicarregui@39essex.com
Anna regularly appears in the Court of Protection in cases concerning welfare issues and property and financial affairs. She acts on behalf of local authorities, family members and the Official Solicitor. Anna also provides training in COP related matters. Anna also practices in the fields of education and employment where she has particular expertise in discrimination/human rights issues. To view full CV click here.
Simon Edwards: simon.edwards@39essex.com
Simon has wide experience of private client work raising capacity issues, including Day v Harris & Ors [2013] 3 WLR 1560, centred on the question whether Sir Malcolm Arnold had given manuscripts of his compositions to his children when in a desperate state or later when he was a patient of the Court of Protection. He has also acted in many cases where deputies or attorneys have misused P’s assets. To view full CV click here.
Adrian Ward adw@tcyoung.co.uk
Adrian is a practising Scottish solicitor, a consultant at T C Young LLP, who has specialised in and developed adult incapacity law in Scotland over more than three decades. Described in a court judgment as: “the acknowledged master of this subject, and the person who has done more than any other practitioner in Scotland to advance this area of law,” he is author of Adult Incapacity, Adults with Incapacity Legislation and several other books on the subject. To view full CV click here.
Jill Stavert: J.Stavert@napier.ac.uk
Professor Jill Stavert is Reader in Law within the School of Accounting, Financial
Services and Law at Edinburgh Napier University and Director of its Centre for
Mental Health and Incapacity Law Rights and Policy. Jill is also a member of the
Law Society for Scotland’s Mental Health and Disability Sub-Committee, Alzheimer
Scotland’s Human Rights and Public Policy Committee, the South East Scotland
Research Ethics Committee 1, and the Scottish Human Rights Commission
Research Advisory Group. She has undertaken work for the Mental Welfare
Commission for Scotland (including its 2015 updated guidance on Deprivation of
Liberty). To view full CV click here.
