Last month marked the 10th anniversary of the establishment of the Court of Protection and the introduction of the Mental Capacity Act 2005 (‘MCA’). The MCA came into force on 1 October 2007 and created a new Court of Protection with jurisdiction to adjudicate decisions for anyone whom was not found to have decision-making capacity. Previously, there had been a common law presumption that individuals had the requisite mental capacity to make decisions and although the MCA was consistent with there being a presumption of capacity, it also provided a test for incapacity. In circumstances where a person lacks capacity, the MCA permitted decision-makers to act on behalf of the person (‘P’) in accordance with his best interests.
At first, the Court of Protection was subject to criticism as it was seen to be a secretive court where life-changing decisions were made behind closed doors. As such, there were few decisions made during the starting years, however, the transparency rules introduced in 2014 has seen a number of reported cases and has to the most degree eliminated this concern. Although, perhaps now the worry is that family members do not always get the closure and privacy they need during challenging times due to the media coverage on some cases.
The MCA has been a crucial piece of legislation and the latest statistics show that between April and June 2017, the Court received 7623 applications and made 8911 orders. It is evident therefore that although the Court had somewhat humble beginnings, it has now developed a nationwide presence and is continuing to expand.
The overwhelming majority of applications though relate to financial and property affairs and in particular applications for the appointment of a deputy for property and affairs. A deputy is perhaps a lesser known alternative to an attorney who would be appointed under a Lasting Power of Attorney (‘LPA’) before P lost capacity. Unlike an attorney, a deputy would be appointed after the person had lost capacity if they did not have an effective LPA and such application would typically be made by one of P’s family members. On 15 August 2017, the BBC interviewed Denzil Lush (former senior judge for the Court of Protection) whom himself stated that LPAs were risky and that he would not use one himself because of the lack of safeguards particularly in relation to Property and Affairs LPA’s. This comment sparked media debate and although the governing body for the LPA has not responded directly, their blogs continue to push the making of LPAs. Of course, LPA’s can and do work effectively but it is important that you seek professional advice from a solicitor to minimise the risk of any issue arising at a later date. A large amount of people do not seek professional advice and it is therefore perhaps unsurprising that there is a growing number of cases whereby an attorney acts improperly whether that be by committing financial abuse or another action. Surprisingly, there is currently no express power for the Court of Protection to order an attorney to return any misappropriated funds to P’s estate Therefore, in these circumstances, family members typically apply to the court for the attorney to be removed and a deputy appointed in their place.
Whilst a deputy’s role largely mirrors that of an attorney, a deputy must act in P’s best interests and is required to submit a yearly report to the OPG whom consider whether the deputy has indeed acted in P’s best interests. The report covers items such as significant financial decisions made for P. P’s involvement in decisions, money P has received and outlaid in the past year and the current value of P’s assets and investments. Attorney’s have no such reporting obligations and they are very much left to their own devices which leaves P open to risk.
Gardner Leader recently acted for a client whose brother had been acting as an improper attorney for their father and was left with no option but to bring a Court of Protection application to have the brother removed as attorney and a deputy appointed by the court. Whilst the application was successful, this scenario could potentially have been avoided had there been appropriate safeguarding measures in place which meant that family members had to be notified. Currently, it is optional as to whether the applicant for the LPA chooses to notify anyone which means that family members sometimes only find out whom the attorney is once it is implemented after P has lost capacity. By this stage, it is too late to challenge the appointment of the attorney and instead their only hope of removing an improper attorney is for the attorney to voluntarily step down or alternatively they can make an application to the Court of Protection to have the attorney removed. However, they will need to satisfy the court that the attorney has behaved improperly.
The House of Lords Select Committee for Health reviewed the Act in 2014 and did not believe that capacity was always assumed where it should be and this led to unwise decision making. As a result, there has been a number of occasions whereby an attorney has taken on the role sooner than is strictly necessary as the person was still more than capable of managing their own affairs. There are though undoubtedly clear benefits to an LPA, firstly, they allow P to choose their own attorney rather than leave it to the court to decide on whom they believe to be an appropriate deputy. Secondly, they can also prevent the costly court and monitoring process that is required for a deputy and if done correctly avoid the likelihood of a family dispute. Perhaps the sensible way forward therefore is to add further safeguarding measures to LPA’s which would enable the court to focus predominantly on cases where P had not previously appointed an attorney and was now in need of a deputy.
Our population is now living longer than ever before and the increase in illnesses such as dementia is well known. In light of these factors, it is likely that we will have far more people losing capacity and it is in my view inevitable that as a result the amount of LPA’s and applications to the Court of Protection are only going to continue to increase over the next 10 years.