There was a curious headline in the Mail on Sunday yesterday. I was not curious enough to buy the paper but curious enough to investigate on the Mail website. Apparently, according to the journalist,
Secret court seizes £3.2bn from elderly… and even forces furious families to pay to access own bank account
Without any reading, I knew the reference was to the Court of Protection. I know I am in a slightly specialised area but I hadn’t considered it was a ‘secret’ court. I suspect that in mail-speak that means that they cannot sit in on its hearings but I had honestly thought it wouldn’t be something that most people would be interested to see covered as much as anything – let alone the fact that as all its hearings involve people who lack capacity, obviously the people in question are not often in a position to give permission to have the details of their lives and finances plastered around in public.
Now, I am no great supporter of the Court in its current manifestation, not least because, since the Mental Capacity Act 2005 came into force with its adjustments to the court processes, the time lags in making a referral have been horrendous – but – it does provide an important safeguard to those who lack capacity and I was surprised at the vitriolic and sometimes plain incorrect language of the article in question.
The court and the system in place is a crucial protection to those who lack capacity to make decisions about financial decisions although it is not solely restricted to financial decisions – that is the basis of the article.
It can be very long-winded and involving. Basically when someone loses the capacity to make a decision regarding the management of their finances, a power of attorney can no longer be taken out, and although a lasting power of attorney can be registered – that can only be done if the decision and the person taking up the ‘attorneyship’ had been made in advance of the loss of capacity.
Otherwise, a lengthy application is made to the Court of Protection. Often it is just a matter of extensive forms and there is an application fee – which the Mail rails at. I expect the Mail would rail more if the all fees were paid from the public purse but, for the record, these fees are means-tested – meaning they are paid only if the estate can afford it – otherwise, they are waived.
The Mail article of course, concentrates on some individual matters where it has been so difficult for families to access the money of their loved ones – but, and this is a crucial matter, the court is bound to make Best Interests decisions and some families’ ideas of the best interests of their relatives’ money is not the same as an independent solicitor or judge.
For the most part, in uncontentious matters, the court appoints a family member as an ‘attorney’. Indeed, that is by far the most favoured options. Deputyships are used when there is either no family member or sufficient concern about the money in question and how it might be used by the family member.
The Mail, using it’s obviously sharp reporting skills, quotes some users of an internet forum set up to gripe about the Court of Protection. I would venture a guess that any story they write about anything, they could drum up some anonymous quotes from random internet forums to concur with whatever they wish us to believe.
I can’t defend everything the Court does. It is slow without doubt and it is very far from transparent but a body such as it is, needs to exist. All that is needed to avoid its role is for a more widespread knowledge of Lasting Powers of Attorney which can be set up at any point prior to the loss of capacity as, in a sense, a ‘living will’ and there would be no need for these processes (except, and I know of at least one case, where these LPAs have been challenged on the basis of some adult protection concerns).
The Court of Protection is tightly wrapped in the processes of protecting those who cannot advocate for themselves. It is very very far from perfect but it has a crucial role. I’m both surprised and not surprised that the Mail is blaming the existence of this court on the Labour government saying
The first Court of Protection was set up by Labour’s 2005 Mental Incapacity Act, which for the first time formalised the arrangements for dealing with the assets and care of people suffering from dementia and other similar illnesses.
Before this it was left to families and social services to make arrangements – but it was argued this ad hoc system was open to abuse by both family members and by officials.
That’s blatantly false, for the record. The Court of Protection existed long before 2005 Mental Capacity Act (note – NOT Mental INCapacity Act), its form has changed somewhat and if anything, I’d say it is more transparent rather than less although by the comments on the Mail article, you’d think it was all some evil plan by the Labour government to ‘rob’ people of the money their family members are rightfully entitled to spend on their behalf..
Perhaps I have a distorted view due to the levels of financial abuse of older and incapacited adults that I have seen, by family members, due to my job. Of course, most people can be trusted completely and most want the best for their family members but money and greed does strange things to people, even some of the closest of families and it is vital that these checks and balances are in place in the form of an independent body.
Ultimately, in the words of a ‘spokesman for the Department of Justice’ quoted in the article
The OPG (Office of the Public Guardian) recommends that every adult considers making a lasting power of attorney. This enables people to choose someone they know and trust to make decisions about their property and affairs or their personal welfare, should they become unable to make decisions for themselves.’
And with that, I would have to agree. I try to tell people again and again to use the Lasting Powers of Attorneys while they can to avoid any difficulties in the future. I share that advice out of the ‘work’ environment as well as I think if there is anything to be taken from this article – apart from shabby journalism by the Mail – it is that point that no-one knows what may or may not be around the corner and if there is someone who you know and trust to make decisions on your behalf – appoint them formally..