Court of Protection Disputes
The Court of Protection (“COP”) was created by the Mental Capacity Act 2005 to make decisions on behalf of those who do not have the required capacity to make the decisions for themselves.
The court deals with the property, financial, healthcare and welfare decisions for protected parties generally referred to as “P”. As the average life expectancy rises in the UK this also means that more and more people are appointing someone to look after their property, health and finances when they no longer have the capacity to do so themselves.
Many people are appointing a trusted family member or friend to take control of important decisions on their behalf, in case a time comes when they can no longer make the decisions for themselves. Whether the appointed person is authorised to act by a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA). The attorney must always act in the best interests of the “donor.”
We are helping an increasing number of people with disputes relating to the management of a family member’s affairs, whether they’re challenging or defending decisions. It can be a difficult and upsetting time for all those involved whatever the nature of the disagreement, but our team are experienced in handling these types of disputes.
The typical areas of dispute are:-
- Whether the donor had the necessary capacity to complete the LPA.
- How the attorney is dealing with the donor’s affairs.
- Whether the donor still has capacity.
- Spending by the attorney.
- Investment decisions by the attorney.
- The sale and management of the donor’s property.
- The cost of nursing care.
- The donor’s will.
- Making gifts – the attorney can only make small gifts without the court approval.
We advise both people seeking to challenge the decisions made by the attorney, as well as representing attorneys who are defending claims made by other family members or third parties. We often find that the dispute has arisen because of an unintentional breakdown in communication between family members and the “dispute” can be resolved after a meeting between the parties, or through mediation. The Court of Protection (in common with most courts) encourages people involved in an attorney dispute to attempt alternative dispute resolution.
Who will pay for an Attorney dispute?
The general rule in the Court of Protection is that the donor’s estate will pay for the objector’s costs. However, this only applies if you act reasonably at all times: if the court considers that an application has been made in bad faith, it can ignore the general rule. The costs claimed are subject to scrutiny by the court.
If you do decide to object to the registration of an EPA or LPA, or to the actions of an attorney or deputy, you’ll need to comply with the formalities of the Court of Protection when you lodge your application. This can be quite complex.
As an attorney, you may have been contacted by the Court of Protection about an objection to your appointment, or to the way that you are handling the estate. Under these circumstances, legal advice is important so that you can justify your decision and explain why it is in P’s best interest.
What is the difference between an Attorney and a Deputy?
An attorney is a person who has been chosen by the donor (the person making the appointment) to deal with their affairs should they lose mental capacity. An attorney was previously appointed under an Enduring Power of Attorney. However, since 1 October 2007, a person can appoint an attorney under a Lasting Power of Attorney.
If the donor didn’t appoint an attorney before they lost capacity, the Court of Protection will appoint a deputy to look after their affairs, with the same powers and responsibilities as an attorney.
The court has discretion to choose a deputy but usually prefers to appoint a friend or relative (as long as they’re satisfied that it’s in the donor’s best interests to do so) rather than a complete stranger. The family member or friend will be appointed unless there is:
- A need to investigate the proposed deputy’s conduct with the donor’s assets .
- A conflict of interest.
- Ongoing friction between family members which could interfere with the proper management of the affairs of the donor.
- A need to make sure that the donor is free from undue influence (particularly the influence of the proposed deputy).
- Evidence that the proposed deputy has physically, emotionally or financially abused the donor.
If the proposed deputy has a bad track record in managing their own financial affairs, this would also prevent the court from appointing them. When there are substantial disagreements within the family, the court will sometimes appoint an independent panel deputy (often a solicitor) to manage the donor’s affairs. The court will aim to do this with the agreement of the family, to avoid unnecessary legal costs.
The Deputy has to provide a yearly report and submit any legal costs incurred for approval. Both a deputy and an attorney can be appointed to help a person who lacks capacity with:
- Property and affairs.
In many cases it is a family member who is appointed as an attorney or deputy and unfortunately in some cases a person in a position of trust may sometimes abuse that position for their own financial gain. If you have concerns that someone you care about may be being taken advantage of by a deputy or attorney you will need a team of solicitors who have the experience in this area to act fast.
At Geoffrey Leaver Solicitors we regularly provide advice and support on:
- Disputed statutory will applications.
- Disputed deputyship and attorney applications; and
- Challenging the actions of a property and affairs deputy or attorney.
On what grounds can I remove an attorney or deputy?
There are many reasons why you may seek to change an attorney or deputy, the most common of which include:
- Financial irregularities of the protected persons accounts.
- Unauthorised gifting of the protected persons assets.
- Misappropriation of assets.
- The attorney or deputy has personal financial problems.
- Neglect or abuse of the protected person by the attorney or deputy.
- The attorney or deputy does not engage in or understand their duties and responsibilities.
- Family breakdown.
- Ill health of the attorney or deputy.
- The professional attorney or deputy retires from practice.
- The protected person continually expresses dislike or distrust of the attorney or deputy.
How our experience can help
We have acted in many cases removing a deputy or attorney in the court of protection, and also act as the attorney for many protected persons where families prefer an independent professional to support their family member’s needs.
Inheritance, Wills & Trust Disputes Team
Dagmara Kulczykowska Partner
Private Client Services 01908 689341Dagmara is Head of the Department and has many years of experience in all aspects of private client work. Dagmara’s strengths are working with families on very sensitive and emotive matters, providing them with specialist legal advice. She ensures clients are supported but also advised clearly and comprehensively on the legal issue(s) at hand so that they can make an informed decision.