Untold stories from the Court of Protection
Most people have never heard of a Court appointed Deputy, let alone do they have any concept of what the role of a Deputy entails.
In this series of short articles, Tom Evans, Solicitor and Professional Deputy, provides real-life case studies which highlight the issues encountered by professional Deputies.
The Court of Protection exists to protect vulnerable people. People who have lost capacity and must face struggles and dangers which are unimaginable to most. They live in a world in which simple tasks can become impossibly confusing, in which those who should offer care and protection may instead abuse and mistreat. Their voices are often silenced by their conditions or abusers; the injustice they live through remaining unseen and unheard.
These are their untold stories.
- Tom Evans, Solicitor and Professional Deputy
Mental Capacity & Crochet
As a Solicitor specialising in Court of Protection matters, I meet clients in hospitals, care homes and, sadly, prisons. As you would expect, I ask to speak with my clients in private. As I have now grown to expect, my request is met with a moment of confused hesitation, a narrow-eyed glance of suspicion, and the old adage ‘…but they don’t have capacity.'
Of course, it is right for those supporting and caring for my clients to exercise caution. They must screen for unscrupulous solicitors, whose folders may contain dangerous documents awaiting the signature of vulnerable patients.
Such fears are entirely warranted. I have uncovered Lasting Power of Attorney (LPA) documents and Wills drafted by dubious solicitors and ‘signed’ by incapacitated patients. These documents represent some of the most powerful and dangerous instruments a person is ever likely to encounter. I do not doubt the need for caution, nor the noble intentions of those whose suspicions I rouse. I do, however, object to the oversimplification of mental capacity itself.
It may seem reasonable to assume that a person either has mental capacity or they don’t. However, to say a person 'lacks capacity' is to make half a statement. It begs the question: ‘lacks capacity to do what?’
The MentalCapacity Act 2005 states at section 3(1) that a person is unable to make a decision if they are unable to:
(a) Understandthe information relevant to the decision,
(b) Retain that information,
(c) Use or weigh that information as part of the process of making the decision, or
(d) Communicate the decision (whether by talking,using sign language or any other means).
In the context of the Court of Protection, the protected party (referred to as ‘P’) generally lacks capacity to make financial and/or medical decisions. The scope of P’s incapacity is defined by the Court; the Deputy is obliged to make only the decisions that P is unable to make for themselves. The overriding principle governing every decision is that it must be in P’s best interests: a concept elegantly simple in theory and incomprehensibly complex in practice.
I think about this complexity as I admire the crochet flowers that adorn the table beside my client, Joan. I do not have the capacity to crochet. Joan does.
Joan had answered the door with a smile of recognition, had invited me in and was making enquiries about how I liked my coffee before I managed to interrupt her and introduce myself. This was our first meeting.
People with cognitive difficulties tend mask their symptoms, many so effectively that they evade diagnosis for months or years. It perhaps speaks to the taboos surrounding such conditions that people would hide their suffering. For some, embarrassment is the motivation. For Joan, I suspect she simply does not wish to be rude.
Now sitting in Joan’s living room, after having introduced myself and complimented her on the fabric flowers, the topic of conversation turns from crochet to capacity. I ask what she recalls about the recent Court hearing and she insouciantly responds that she doesn’t know much about it ‘off hand.’
I remind Joan that she had signed an LPA appointing a ‘new friend’, Wendy, to make decisions on her behalf regarding finances and welfare. Wendy and Joan had met at a cafe in the local market. Three months later, the Office of the Public Guardian (OPG), the body who register and oversee LPAs and Deputyships, received an LPA in which Joan gave full authority to Wendy to make decisions regarding Joan’s property, finances, health and welfare.
Joan does not recall signing the LPA, nor her reasons for appointing Wendy. The Court had concluded, with the aid of a Psychiatrist’s report, that Joan did not have capacity to draft the LPA appointing Wendy. Further, evidence was submitted that Wendy had preyed upon Joan’s anxieties and dementia-related delusions regarding her property and finances. Joan’s hospital notes refer to a ‘new friend’ who had visited Joan to warn her that, if she didn’t sign some documents, all of her money would be sent abroad.
I reassure Joan that the Court has now revoked the LPA and has appointed a Professional Deputy in place of Wendy. I wanted to further reassure her that I would make sure her property and finances were protected. Unfortunately, I couldn’t.
Hidden in my folder of papers was a copy of the Land Registry document for Joan’s home, in which she had lived in for the past several decades, the mortgage for which she had proudly paid with her nurse’s salary. The awful truth was that the house in which we sat, the home in which Joan spent her time crocheting, no longer belonged to Joan at all.
My investigations had revealed that Joan, whist in hospital, had signed four documents. The first was the LPA appointing Wendy to make decisions regarding property and finances. The second was an LPA appointing Wendy to make decisions regarding health and welfare. The third was a TR1 form which transferred Joan’s ownership of her home into the sole name of Wendy. The fourth: a brand new Will in which Wendy was the sole beneficiary of the entirety of Joan’s estate.
With constant reassurances, I ask Joan about decisions she had made. Without exception, Joan recalls not one of the enormous decisions nor documents. I ask whether Joan owns her property and she proudly confirms that she does. I ask what she’d like to happen to her property after she passes away and she tells me she’d like it to go to her lifelong friend, Mrs Moore, with whom she had carried out her nurse's training. Mrs Moore was in fact the beneficiary under Joan’s previous Will (now null and void). I ask about Wendy - Joan’s expression changes. She tells me she doesn’t like underhanded people. I tell her I agree.
I leave with folder tucked under my arm; inside is a note, underlined at the top of my to-do list: “Get Joan’s house back.”
Joan’s situation is not exceptional. There are, without a doubt, thousands of vulnerable people in similar or worse predicaments. Luckily for Joan, several years ago she had drafted an LPA appointing her old friend Mrs Moore as her attorney. Accordingly, when the OPG received the LPA from Joan’s ‘new friend’, they notified Mrs Moore of this new LPA and, luckier still, Mrs Moore asked a few questions. These questions ultimately led to a Court hearing and the appointment of a Deputy.
Had Mrs Moore not already been appointed as attorney, there would have been nobody to object to Wendy’s appointment. Nobody would have known that Joan’s home was no longer her home.
There are now 3 million LPAs. In 2018/19, the OPG received 5,245 safeguarding referrals. The number of vulnerable people who are actually being financially abused at this very moment is undoubtedly much higher.
Those who are most vulnerable are those who are least likely to have any form of support network. Those without a support network are those least likely to have their financial abuse investigated. Unfortunately, in the minds of people like Wendy, vulnerable people represent easy targets. Fortunately for Joan, with a professional Deputy on her side, she’s no longer vulnerable.
Tom Evans is a Solicitor & Professional Deputy
The 13th Hole:
The Right to Make Unwise Decisions
The steel shutter was crinkled and dented, its lower half was curled upwards and the heavy bolts which had secured it in place now rattled freely. Portions of the window frame lay rotting in chunks at my feet. I climbed up to the window ledge and pushed the gaping steel shutter further from its frame, allowing room enough for me to squeeze through. Once inside, I clicked on my torch.
Earlier that day, before meeting my client for the first time, I introduced myself to the care home manager and had asked whether Allie had any difficulty communicating. The manager had laughed and said Allie had been talking non-stop about the fact that her Solicitor was coming to see her. ‘That’s her now,’ the manager said, nodding her head in the direction of the communal area. From down the corridor, I heard Allie emphatically refuse her lunch because ‘my Solicitor is here to see me.’
‘I think that’s my cue,’ I said, thanking the manager.
Allie skewered me with a curious glare as I approached, ‘Are you my Solicitor?’ she asked.
‘I am,’ I replied, ‘it’s nice to meet you.’
Allie, with an upwards glance, told me she’d been waiting all morning for me. I apologised and thanked her for her patience. I asked if we could talk in private so she could tell me a bit about herself. She smiled heartily, and eloquently obliged.
Allie spoke in a manner that I found economical and succinct. I could understand why the manager may have described it as ‘terse’, but I got the impression Allie’s manner was borne from an irreverent, cheeky confidence. Whilst it is true that frontotemporal dementia causes a loss of inhibitions (which can manifest in speech that can be deemed ‘inappropriate’), Allie would later tell me she had been a phone operator for the emergency services. She was used to speaking with people in moments of crisis, when time was of the essence. Her knack for cutting through pleasantries could well have stemmed from her prior career and may have had nothing to do with dementia at all.
‘You don’t look like a Solicitor,’ she told me, squinting at my black suit, ‘you look like you’re going to a funeral.’
When the same observation was made to Johnny Cash (otherwise known as ‘the Man in Black’), he had replied: “Maybe I am.”
I must admit that Johny Cash’s response was the first that came to mind. However, my frontal lobe inhibited the impulse and, not having the quick-wittedness to think of another response, I found myself saying ‘thank you.’
Allie chuckled, pleased with how easily she had wrong-footed me.
We spoke about Allie’s house, which she described with an infectious warmth. Allie and her husband had lived next to a canal, in a cottage hidden away amongst tall trees. Allie’s husband had grown fruit and veg in the gardens and Allie looked after the chickens. She had a deep dislike for foxes, which she expressed in no uncertain terms. She described her long daily routine, which saw her collecting eggs in the morning before her shift, and again when she got home. When I asked about friends and family, she would refer only to her husband, who had died from complications during minor surgery.
Consequently, Allie disliked hospitals and doctors even more than foxes. She was unequivocal in her wish to return home. I asked her where her home was and she told me it overlooked the thirteenth green of the local golf course.
Back at the office, after some digging, I found a possible address for Allie’s house. A google-map satellite image showed only trees, but the beginnings of a path was visible where a canal crossed the road. It seemed to fit Allie’s description, but for the golf-course. I searched for the nearest course and found it several miles away. I checked for any properties overlooking the thirteenth green but there were none besides a plot of new-builds. Perhaps she was collapsing several memories or properties into one. I headed out to the canal-house to investigate.
I pulled in by the path and followed as it ran parallel with the canal before turning off into the woods. The ground became churned and boggy as the sound of the main road became distant, then silent. I didn’t notice Allie’s cottage until I was standing in its shadow, so camouflaged was it in overgrowth. Only patches of old stonework were visible through the leafy vines that encased it. Windows and doors were sealed with sheets of steel, but for one, whose shutter had been pried free from the window frame. It was through this window I entered. Though it was bright outside, Allie’s cottage was pitch dark. The electricity had been disconnected long ago and the shutters blocked out all but thin slithers of natural light. With torch in-hand, I carefully made my way through the cottage.
I often search homes that appear to have been placed on pause; mugs and teabags may be ready on a tray, newspapers may lie open on a coffee-table with a half-finished sudoku. Allie’s home had not been preserved in such a state of stasis; it had been ransacked, over and over again. Every window had been smashed from the inside and, thanks to the steel shutters, the shards lay in pools on the torn carpets. Every cupboard door hung open and askew, its contents scattered across the floor amongst empty crisp packets and cans of Tango. No longer the idyllic cottage of an elderly couple, it had become a teenager’s hideout. I thought of Allie’s description of the foxes, how she knew they’d be lurking in the woods, waiting for her to leave the chickens unguarded. In the garden, I found the decaying coop. Through chicken-wire I saw fragments of eggshell.
That day, I arranged to re-secure the property with heavy-duty shutters, a perimeter fence and ‘Private Property’ signs. Even as I did so, I could picture the teenagers climbing the fences and gleefully chipping away at the window frames to regain access to ‘their’ hideout. In their minds, the cottage was abandoned. To them, it belonged to nobody. Though I knew it was an impossibility, I entertained the thought of catching them in the act of breaking in, of taking them fifteen minutes down the road to where Allie was being kept against her will and explaining to them that their hideout was her home. Allie had not abandoned it, it was Allie who had been abandoned.
A Deputy for property and financial affairs has no authority to make decisions regarding health and welfare (such as the decision to deprive a person of their liberty). The Mental Capacity Act 2005 (the MCA) sets out the process and safeguards in relation to such decisions. These are currently known as Deprivation of Liberty Safeguards (DoLS) but will soon be replaced by an amended system known as Liberty Protection Safeguards (LiPS). In essence, if a care home or hospital plans to deprive a person of their liberty, they must follow strict processes and obtain authorisation. The DoLS ensure the protected party (known as ‘P’) has a representative, who has the right to review the deprivation and ultimately challenge it through the Court of Protection.
Allie had been deemed by social services as lacking the requisite capacity to decide to return home to her cottage. They referred to the s.3(1) of the MCA which states that a person is unable to make a decision for themselves if they are unable ‘to retain, use or weigh…information as part of the process of making the decision’. Social services believed Allie was unable to weigh the risks associated with her possible return to the secluded cottage and there were doubts over Allie’s ability to retain the fact that her husband was not there waiting for her.
Allie’s wish to return home without the help (or interference) from social services may have been unwise. However, we all have the right to make unwise decisions.
The Principles enshrined at the very beginning (s.1(4)) of the MCA state that ‘a person is not to be treated as unable to make a decision merely because she makes an unwise decision.’ Thus, the can of worms is opened and the slippery, subjective concepts of ‘wisdom’ and ‘risk’ wriggle free.
Given the risks, any person who drives a motorbike rather than a car may arguably have made an ‘unwise’ decision. However, telling a biker that they haven’t weighed up the risks of their decision is unlikely to change their mind (and, depending on the biker, may also be unwise). Further, bikers aren’t just people who happen to ride motorbikes; their motorbike is part of their identity. It can be a symbol both of independence and group-solidarity. In many cases, a bright line cannot be drawn between property and identity. For Allie, her cottage was not merely her property; it represented her independence, her purpose, and the life she shared with her late husband.
The freedom to make unwise decisions is certainly a freedom worth preserving.
Ultimately, this was a debate to be had between Social Services and Allie’s DoLS representative. Unfortunately, Allie’s worsening health was unwilling to await the debate’s outcome. With each day, the risks grew and Allie’s protestations shrunk.
After much deliberation, we took Allie to see her cottage. Though its current state of disrepair would likely cause Allie distress, we were under an obligation to take all practicable steps to help Allie reach a decision about where she should live.
The mobility-taxi parked and Allie’s wheelchair was manoeuvred onto the path. The weather had turned and even the beginning of the path was slippery underfoot. Allie asked where we were and I reminded her that we were going to see her cottage. I held an umbrella over Allie and her social worker, who forced the wheelchair over the bumpy ground. We barely got halfway down the path before the social worker and Allie’s representative decided to call off the visit. Allie was becoming more agitated and insistent that wherever it was we were taking her, it was not her home.
Once back in the taxi, she again mentioned the thirteenth green of the golf course. She told us that we should take her there instead. I asked whether she used to live there and she waved her hand as if to dismiss the stupidity of my question.
‘No,’ she said, ‘it’s where we used to sit. Me and my husband. The bench by the thirteenth green.’
The next day, I took a call from our property security contractor. There had been an arson attack. I asked him about the damage and he said he had better send photos.
The cottage had been burnt to the ground. Only the charred shell of a building remained. The roof was gone, as was every piece of furniture. Even the trees nearest the building were burnt black. The fire brigade had no knowledge of the fire. The cottage was so secluded that it had burned itself out without anybody noticing, besides those who had set it alight.
Allie would never know what happened. She passed away some weeks later. Her last Will and testament left her remaining estate to the RSPCA. She directed that her ashes be scattered near a bench overlooking the thirteenth green of the local golf course. Her husband’s ashes were already there waiting for her.
Professional Deputy and Attorney