The Daily Mail reported this week that a women has been jailed in secret by the Court of Protection for 6 weeks for trying to take her Father out of a care home.
The Daily Mail reported that Wanda Maddocks feared that her Father John, an Alzeimer’s sufferer, was in danger of dying. HHJ Martin Cardinal sentenced Wanda Maddocks following hearing evidence that she had repeatedly broken Court Orders stipulating that she must not interfere with her Father’s care and it has also been reported that she left offensive messages for social workers at her Father`s care home and gave her Father a wooden cross to ward off evil at his care home.
The Court of Protection has received much criticism over the last few years and although this article doesn’t wade into that particular debate it is certainly advisable to take preventative steps to avoid the Court of Protection becoming involved in your personal affairs due to it’s intrusive, complex and very expensive nature.
So what is the Court of Protection?
The Court of Protection is a specialist court created under the Mental Capacity Act 2005. It makes specific decisions and also appoints other people (deputies) to make decisions for people who lack the capacity to do this for themselves. These decisions are related to their property, financial affairs, health and personal welfare.
The Court of Protection has the authority to appoint ‘deputies’ in order to make decisions for someone who is no longer capable of doing so.
Deputies can range from close members of the family to family friends, or a trusted party like a Solicitor or other professional. The role of deputy requires the person to be trustworthy and responsible as decisions will have to be made to protect the person’s best interests in a accordance with directions from the Court.
When does the Court of Protection get involved?
The Court of Protection becomes involved where an agreement cannot be reached about the care and welfare of a vulnerable person.
The Court of Protection have very wide powers to make decisions about the overall care and welfare of a vulnerable person including what medical treatment that person should have, where the person should reside, and even who the person should have contact with.
For example, the Court of Protection in the Maddocks case ordered that Wanda Maddocks, was not to contact her Father because the Court felt that it wasn’t in her Father’s best interests. This example highlights just how draconian the Court of Protections’ powers can be sometimes and serves as a reminder that there are differing opinions about what is truly in a person’s best interests.
Is the Court of Protection Expensive?
The application for appointing a deputy amongst other applications can be a very costly and time consuming exercise.
An application fee to the Court to appoint a deputy is £400 and a further ‘appointment of deputy fee’ of £100 will be payable to the Office of the Public Guardian.
In order for a deputy to act for a vulnerable person they have to take out an insurance policy to cover their actions as deputies. The level of insurance required is typically around two thirds of the vulnerable parties’ assets and if the person had assets of around £500,000 a typical insurance premium for the deputy to act would cost approximately £600, roughly speaking.
A further ‘supervision fee’ is also payable to the Office of the Public Guardian each year totalling £350.
There are also legal fees to factor in to these basic charges outlined and these could be anywhere between £850 – £1500 + VAT, depending upon the complexity of the case.
So pretty expensive then!
How do I avoid the Court of Protection becoming involved in my affairs?
Generally speaking, the best way to avoid the Court of Protection becoming involved in your affairs is by granting a Lasting Power of Attorney (LPA) to someone whom you trust.
Choosing someone to take Power of Attorney over your financial affairs is the only way to avoid having to go to the Court of Protection, should you lose capacity to manage your affairs yourself, and gives you peace of mind knowing that you have been able to decide who shall handle your financial affairs should you no longer be in a position to do so. It is advisable to do this as a preventative measure to avoid problems should the worst happen. This will relieve the burden on loved ones who would otherwise find themselves in a position of having to go to the courts in order to access your finances.
In addition to this, Power of Attorney may be needed where decisions need to be made in relation to the health and welfare of a person and they are unable to do this for themselves.
BBC one program `The One Show’s Power of attorney top tips blog- how to grant control of your finances` has highlighted the problems which can be faced where Power of Attorney is not granted and a loved one becomes mentally incapable of managing their affairs. The video contains footage of a woman who was unable to access her husband’s money following an accident which left him in a coma. She had to apply to the Court of Protection and talks about how this process affected her.
If you require advice on planning for the future, including granting Lasting Power of Attorney, or you require advice on obtaining control of a family member’s finances as they are no longer mentally capable then please contact us and we will be happy to assist you.
Please see our fixed legal fees for Lasting Powers of Attorney.
