Court of Protection Complaints
At the end of October there was considerable media coverage of problems in the Court of Protection. The headline in the Telegraph for 26 October read "Incapacity Court Treats Families Like Criminals" gives a flavour of how the press were looking at the matter.
What appears to be striking is the way that the Court of Protection deals with individuals who rarely come into contact with them as opposed to specialist solicitors who deal with these issues regularly. The Court was set up by the Justice Secretary, Jack Straw, to deal with the affairs of people who lose the capacity to deal with their own affairs. Since then, complaints have reached more than 2,000. The Government grossly underestimated the amount of work which would be generated as a result of which resources were woefully inadequate. Also, the forms required by the Court were lengthy and complicated. Happily, some of these complaints are being addressed as a result of pressure from solicitors working this area of law.
However, individuals trying to manage the affairs of loved ones who have lost capacity continued to experience problems with the Office of the Public Guardian which appoints Deputies to act for the mentally incapacitated. It oversaw assets of £3.2 billion and charged a total of £23 million in fees. Unfortunately, the Government insists on the cost of the Court being met by those who, through no fault of their own, have to use it. In spite of pressure from solicitors, this continues.
The OPG operates different levels of oversight so that an individual Deputy with no track record will be viewed with more caution than a solicitor handling many cases. This is not prejudice against an individual but simply a reflection of the need to be cautious about people not known to the OPG who are managing the assets of vulnerable people. By way of example, Heather Bateman, an author of children's books, said that she had to apply to the Court for any spending over £500 including her daughter's university fees following an accident which left her husband in a coma. The Telegraph reported her as saying "The Court of Protection brought almost as much anger, grief and frustration into my life as the accident itself". She went on to call it "an alien, intrusive, time consuming and costly institution" which "ruled my waking moments and my many sleepless nights".
The Ministry of Justice which runs the Court and the OPG denied an allegation that it was seizing money from vulnerable people and defended the way it operated by saying "family members are able to make all necessary representations to the Court who will then make the necessary order that is in the best interest of the person who lacks capacity".
The problem is that the process of dealing with the affairs of someone who has lost capacity can be very difficult and can add to the distress already felt as a result of the condition of the person who has lost capacity. At odonnells we have a deep understanding of mental health issues, expertise in the law and procedure and an excellent track record with the OPG and Court. As a result, we can react quickly to situations as they arise. This can ease the pressure on families who struggle while money is tied up in the Court or may need urgently to sell property or otherwise protect assets.
Furthermore, we can help to avoid the Court of Protection entirely by drawing up a Lasting Power of Attorney. Providing this is done properly, and the process needs care, someone can be nominated in advance of incapacity to handle the person's affairs without the complexity and delay of the OPG. For existing clients we will do this and give you complete peace of mind for only £400 + VAT + registration fee if applicable. Please feel free to contact Christine Makinson if you have any queries or want to take any of these matters further.
odonnells is a partnership of qualified solicitors regulated by the Solicitors Regulation Authority (registration number 74299) who have chosen not to limit liability to clients or the public.