Secrets and lies

 

 

 

 

"The Ministry of Peace concerns itself with war, the Ministry of Truth with lies, the Ministry of Love with torture and the Ministry of Plenty with starvation. These contradictions are not accidental, nor do they result from ordinary hypocrisy: they are deliberate exercises in doublethink."

George Orwell, 1984

If recent press coverage about the Court of Protection is to be believed, the spirit of 1984 is alive and well. While fellow advisers understand the court and know it significantly predates the Mental Capacity Act, our clients won't necessarily realise. The thought of a 'court' can be scary and intimidating, and often our own efforts to market powers of attorney only add to this. ?But this difficult, time-consuming process can be avoided if a power of attorney is prepared.

As a property and financial affairs deputy on the Office of the Public Guardian's panel, my experience of making financial applications to the court doesn't support a view of them as a shady, dystopian organisation. I am not going to pretend, however, that the court is perfect. Making applications is not straightforward or without frustration. So what can be done to improve the process for your clients?

• Be realistic, but not pessimistic. Don't panic your client, colleagues or yourself by starting any application off with head shaking and predictions of doom and gloom.

• Make sure you appoint the 'right' person/people. You don't need to make a moral judgement, but ?perhaps the spouse isn't going to be the best deputy - particularly if they are elderly or, on a more practical level, if they co-own property ?with the person to whom the application relates.

• Don't feel obliged to appoint only one deputy. I have made a number of applications for joint and several deputies to be appointed. These have included a partner at my firm alongside a family member, two brothers acting for a parent, and a mother and two sons acting for a third son. This can allow flexibility as well as reducing the odds of having to apply to the court again for further orders.

• Send the COP3 assessment of capacity form to a GP or consultant as soon as possible. It can take a while for these forms to be completed, and sometimes the first medical practitioner you approach won't be willing or able. The British Medical Association and the Law Society's book Assessment of Mental Capacity is extremely useful.

• Be sure to include as much of the following information on the COP3 as possible to aid the assessor: details of the specific decision/decisions to be made; background of the person subject to the application; and details of assets, income, liabilities and expenditure of the person.

• Develop a set of precedent letters and, perhaps more importantly, paragraphs that can be inserted into the relevant sections of the COP1 and COP1A. For example, when applying for a deputy, include specific requests about their authority, such as selling property. And always include a part about your own fees.

• Send precedent letters to respondents or people to be notified, as well as to the GP to save time.

• Having made an application, email the Court of Protection enquiries address (courtofprotectionenquiries@hmcts.gsi.gov.uk) if you need an update. My emails have been replied to promptly.

These are just a few pointers about dealing with one aspect of the Court of Protection. That the court averages 1,800 applications a month, and that financial abuse is apparent in 10 to 15 per cent of all cases, surely indicates that the work they do is necessary, as is the confidentiality afforded to those people they are making decisions for.

Sofia Tayton is an associate at Lodders Solicitors

She writes the regular in-practice article on care and capacity for Private Client Adviser

What do you think about the Court of Protection? Email the acting editor