Gifts

Gifts from an estate when the donor has limited mental capacity

What happens when someone wishes to gift money or other assets to family and friends or good causes, but that person does not have sufficient mental capacity?

Today’s Wills and Probate put that very question to Beverley Beale, a Court of Protection Panel Deputy and associate at Weightmans LLP.

Ms Beale said that most people would be in the habit of making gifts, either on special personal or religious occasions, or to charities, and while there could be tax advantages to doing so, gifting brought benefits to the giver by strengthening connections and making people feel good in themselves.

Attorney powers

Subject to some exemptions, attorneys and deputies are not permitted to make gifts from the donor/protected party’s estate. But the Mental Capacity Act 2005 allows attorneys who are acting under a registered property and finances Lasting Power of Attorney (LPA) to make gifts. The gifts must be ‘reasonable’, taking into account the circumstances of the donor, including the size of their estate, and are permitted:

  • On customary occasions to people (including the attorney) who are related to or connected to the donor
  • To charities that the donor made or might have been expected to make donations.

Customary occasions under the Mental Capacity Act 2005 are defined as birthdays, marriages or the formation of a civil partnership, or any other occasion where presents are usually given within families or among friends.

Seasonal gifts

For attorneys acting under an Enduring Power of Attorney whether registered or unregistered, measures must be taken to ensure the gift is either seasonal (Christmas presents) or given on the anniversary of a birth, marriage or civil partnership.

The other conditions are that the gift is made to someone (including the attorney) who is related or connected to the donor, or to a charity the donor supported or might have supported. And the gifts should be “of a not unreasonable value”, which considers all the circumstances, particularly the size of the estate.

Most Lasting and Enduring Attorneys need to comply with any restrictions set out in the power of attorney document.

Court of Protection authority

A Financial Deputy has the authority similar to the statutory authority provided to Attorneys. Should a Deputy of Attorney want to make a gift outside of the exceptions they are allowed, they must apply to the Court of Protection for the authority to do so, unless the gifts are minor enough that applying to the Court would be disproportionate. This only applies if a person’s estate is £325,000 or more.

A case in 2018 related to the estate of a woman that was worth £18.5 million. Her attorney (her son) applied for the authority to make a gift to himself of more than £7 million. There was plenty of evidence about the woman’s previous wishes regarding her financial and tax planning, and agreement between the recipients and advisors, and the court agreed the decision was in her best interest.

PADSN is a free resource to deputyship and appointeeship teams. We provide free training days and advice where possible. You can contact us via email: [email protected] or by telephone: +44(0) 20 7490 4935


#FreeBritney – what is conservatorship and what does it mean for the star?

Over the last few years, a lot of attention has focused on Britney Spears and more specifically, the control her father has over her business and personal life.

After a well-documented public breakdown in 2007, the pop star’s father Jamie applied to be conservator of her business and personal affairs as reported on Sky News. A conservatorship is similar to the power of attorney in the UK and is usually applied in cases where people do not have the mental capacity to make decisions regarding their care or money, usually applied if someone has dementia or another mental illness.

In Britney’s case, the conservatorship was split in two – one for her finances and estate and other for her as a person. She has not had control over her finances since 2008. Her father took on the conservatorship for both parts but in 2019, he stepped down from his role as her personal conservator. A care professional was appointed to do this temporarily, although Britney has requested the arrangement be made permanent.

‘Humiliating and embarrassing’

The singer was back in court this week arguing for an end to the conservatorship. In an impassioned speech to an open court, Britney told the judge she found the arrangements “humiliating and embarrassing” and “abusive”. It is not the first time she has spoken in court about the conservatorship, but this is the first time it has been held in public.

Deputyship development days for public sector workers – Finders International organises regular free sessions aimed at those working in deputyship roles to share best practice, learn from Court of Protection officials and more. Read more about our services for the public sector here.

She alleged that at one time she’d been sent to hospital against her will and that her medication had been switched without her knowledge. She also wants to marry her boyfriend, the Iranian actor and model Sam Asghari, and have a baby. The conservatorship will not allow her to do this, and she told the court she has been forced to use birth control against her will to stop her getting pregnant.

Net worth of $59m

Since the conservatorship was put in place, Britney has released three albums, made numerous TV appearances and held a residency in Las Vegas until 2019. According to Business Insider, her net worth in 2018 was about $59 million.

Jamie Spears and his legal team say that the star and her fortune remain vulnerable to fraud and manipulation and that he has saved her from financial ruin.

In 2009, a grassroots movement #FreeBritney started – fans of the star who believe the conservatorship is wrong. Tens of thousands of people have signed petitions asking the White house to intervene. While Britney herself had not spoken in public about the issue before now, fans have claimed she sent coded messages on Instagram hinting at her concerns.

Britney’s court-appointed attorney Samuel Ingham III said Spears had informed him that now she has spoken out in public and made her feelings on the conservatorship clear, she wanted to keep future proceedings private.

He added that he will discuss the issues of formally filing for termination of the conservatorship with the star and the introduction of a private counsel to represent her. Terminating the conservatorship can’t happen until a formal request is lodged with the court.


Council at fault for charging decision

Essex County Council has been found at fault for the way it considered two women’s Disability Related Expenses by the local government and social care ombudsman, Disability Rights reports.

Because of the women’s disabilities, both have court-appointed deputies to make decisions about their financial affairs. The fees charged by the deputy are higher than the rate the council said its own deputyship team would charge to perform the task and because of this, Essex County Council claimed it was unreasonable to treat the higher amount as a Disability Related Expense.

The Care Act in England and Wales means councils should consider the expenses someone incurs that are directly related to their disability when working out how much they contribute to that person’s care.

Council service ‘not reasonably available’

The investigation by the ombudsman said the deputy had been appointed by the Court of Protection, and this did not mean the individuals wanted a more expensive service and that no comparison could be made as the application to the Court was not made by the Council.

The local government and social care ombudsman, Michael King said Essex County Council seemed to be “fettering its discretion” when considering the case of the two women. While the guidance allowed for councils to decide not to allow disability-related expenses where there was a cheaper option, it had not considered the specific circumstance.

The Ombudsman recommended the council reconsider whether the fees are reasonable in relation to the services provided to the two women by the appointed Deputy. Should the council decide to apply on behalf of the two women in question to have Essex appointed as deputy, it must factor the costs of the process into its financial assessment.

The Ombudsman also went on to recommend that Essex County Council consider the policy reasons why a local authority may not be the best alternative to court-appointed deputies.

PADSN is a free resource to deputyship and appointeeship teams. We provide free training days and advice where possible. You can contact us via email: [email protected] or by telephone: +44(0) 20 7490 4935


OPG start podcast channel: ‘updating how we communicate’

The major success of the Mental Capacity Act has to be the uptake in people making Lasting Powers of Attorney. This has meant an increased understanding amongst the general population of the work undertaken by the Office of the Public Guardian.

A lot of work has been undertaken to promote the work of the OPG, with various projects and schemes that have been run in conjunction with other agencies. Whilst this is welcomed, the way that the OPG engages with ordinary citizens can be open to criticism.

One result of how they have actively tried to listen is via their stakeholder survey. Published in June 2020 it established the need for simpler guidance to be made available to the general public. The OPG took up the challenge and launched a series of podcasts, available online, featuring topics that are commonly requested. So far there are only five episodes available, but they make it clear there will be more subjects covered.

Subjects currently covered include top tips for LPA’s and giving gifts as an attorney or deputy. Given the calls we receive via PADSN for advice it would great to see much more content added, including advice on DOLS, how to replace a deputy if they aren’t acting in my best interests and help for completing annual forms.

There is still a great deal of work to do, however many will be unable to engage with podcasts. Not everyone has a computer for example. Saying that, it is very welcome to see the OPG expand the way they engage with the public and deputies at large.

You can listen to the podcast on all the major channels by searching for the ‘Office of the Public Guardian’ or follow the link here.

 

The PADSN is an organisation which has been specifically created to help provide key assistance to public authority deputies across the UK. If you would like to learn more about THE PADSN, watch past events or require assistance, you can further explore our website here. Alternatively, you can telephone: +44(0) 20 7490 4935 or email: [email protected].


covid jab

Court orders 80-year-old Care home resident to receive COVID vaccine despite son’s objections

Since the beginning after 90-year-old grandmother, Margaret Keenan was the first to receive the Pfizer COVID-19 jab in the UK, there have been numerous conditions requiring attention within the mass vaccination programme. This is seen most recently in the first reported Court of Protection judgment made on capacity in relation to the COVID-19 vaccine.

Last month saw the decision on a 80-year-old care home resident, an individual included within phase 1 of the COVID vaccinations known only as Mrs E in court papers, and whether she should receive the coronavirus vaccine despite her sons concerns of the integrity in the vaccine.

Mrs E has dementia and was diagnosed with schizophrenia some 20 years ago and has been living within a London based care home since March 2020 – a home where a number of confirmed COVID cases were reported following the son’s concerns. Also given her lack of capacity to understand the nature and severity if she was to catch the virus. Such factors including numerous other mentioned within the decision compounds her vulnerability to become infected with Covid-19.

The judge further noted, as required by section 4(6) of the MCA in determining the best interest, to note Mrs E’s past vaccinations, aligning with the beliefs and values sought then to inform the decision of her present need to vaccinate. Prior to her dementia diagnosis, it was found that Mrs E willingly received the influenza vaccine and a vaccination during the 2009 Swine flu pandemic.

The son, noted as Mr W in court papers, further queried whether Mrs E’s wishes and feelings had been canvassed. The son does not have power of attorney for health and welfare, yet his objection the day before the scheduled vaccination, lead to the plan being halted.

Mrs E's representatives urgently sought a declaration, pursuant to section 15 of the Mental Capacity Act 2005 ('MCA 2005') to the effect that it would be lawful and in Mrs E's best interests to receive the vaccine when next availably possible.

On 8 January 2021, Hammersmith and Fulham council informed the woman’s accredited legal representative (ALR) that she was to be offered the Covid-19 vaccination on 11 January 2021.

In the first reported Court of Protection judgment on capacity and best interests in relation to the Covid-19 vaccine, The Vice president of the Court of Protection and ruling judge, the Honourable Mr Justice Hayden said the woman, Mrs E, who lacks capacity to decide whether she should receive the vaccination, should receive the jab “as soon as practically possible”.

To read the full court judgement, please follow the link here.

The PADSN is an organisation which has been specifically created to help provide key assistance to public authority deputies across the UK. If you would like to learn more about THE PADSN, watch past events or require assistance, you can further explore our website here. Alternatively, you can telephone: +44(0) 20 7490 4935 or email: [email protected].

 


The year 2020: The Leap Year not short of drama and perseverance

When asked to sum up 2020 in one word, what would you use?

‘Pandemic’ would spring to mind immediately followed by ‘lockdown’ or ‘bubble’. I’d guess that you would expect many to use negative words to sum up their experiences of the year that has passed, rightly so as I’d guess no one has been left untouched by the virus in some form or another.

My choice is not a negative one, it is a defiant word. One that sums up how we have had to roll up our sleeves and change, one that defines our spirit, and one that defines how we have coped with the strains of Covid; it is ‘resilience’.

The definition, according to the Oxford English Dictionary is ‘[they] showed great courage and resilience in fighting back from a losing position to win the game’.

Whilst we know that this has not been a game, for local authorities the pandemic would have been prepared for. Emergency plans were rolled out and staff threw themselves into action. Overnight staff had to be dispersed from working in large offices to working from their homes. The challenges for IT teams will have been tremendous and the strain on already overstretched resources would have led to many sleepless nights for staff struggling to ensure services continued whilst keeping staff safe.

Similarly, for Finders International, we changed from an office-based service to one that could be run remotely overnight. Logistically, it was easier for a company the size of Finders to diverge operations given the smaller scale of staff - saying that, it was no mean feat to have to undertake.

The online resources we use to trace people remained available however the physical resources closed, which presented a few issues although nothing we couldn’t cope with.

For me it’s meant a change in the way I work. Over the past two and a half years prior to lockdown I’d had the privilege of meeting many of you in person, either in your offices or at one of the many events we’ve successfully run across the country. I’ve been lucky to have seen more of Britain than most from the comfort of a rail seat, travelling all directions.

Back in late February it was starting to look like things would need to change and quickly. We had planned our first physical conference of the year in Manchester. The venue and speakers were all booked, invitations to the event had been sent. We were ready to go. More or less overnight we had to postpone and take the conference online. Thanks to the fantastic work of our team we managed to pull a package together and our first online Deputyship Development Day went live in March. Subsequently we have produced three more online events aimed at local authority deputyship teams. On top of this we have had separate events for Public Health Funerals, private client solicitors, hospitals and coroners, all producing excellent feedback from our viewers and further transpiring into donations towards charities working hard to support those who require it most across UK.

Whilst we have no idea when or if things will ever return to normal, we have still been able to support teams, provide quality material and engage via video conferencing. In the face of adversity, I think we have all shown great resilience.

Have a peaceful and relaxing festive season, but of overwhelmingly more importance, keep well and keep safe.

We look forward to seeing you in 2021.

David Lockwood – Finders International

 

The PADSN is an organisation which has been specifically created to help provide key assistance to public authority deputies across the UK. If you would like to learn more about THE PADSN, watch past events or require assistance, you can further explore our website here. Alternatively, you can telephone: +44(0) 20 7490 4935 or email: [email protected].


Family Relationships Chart

BBC Kent Radio talks to our Dementia Champion

BBC Radio Kent invite Finders International’s, David Lockwood, to talk all things Dementia. As well as being Finders’ Public sector business development Manager, David is also a Dementia Friends Champion and regularly provides training to staff, clients and friends.

Set up by Alzheimer’s Society, Dementia Friends was formed to help people better understand the disease and assist in making communities better places to live for those dealing with dementia.

David’s role as Dementia Friends Champion is to encourage others to make a positive difference to people living with dementia in their community. David holds regular information sessions which will equip you with vital information about the personal impact of dementia, and everything you can do to help. To book in a session with David (45 min presentation) simply contact us via [email protected] . For more information you can also visit https://www.dementiafriends.org.uk/WEBArticle?page=become-dementia-friend.

 


BBC radio Kent’s morning show

BBC radio Kent’s morning show hosted by Jules Serkin is joined by David Lockwood, the Public Sector Business Development Manager for Finders International.

David talks about his past role as a Deputy, a role which involves dealing with the finances of individuals who no longer have the capacity to do so, and how these skills translate over to the work of Finders International.

 


Court of protection

New Rulings by the Court of protection

Two significant rulings have recently come from the Court of Protection (COP) which could have a substantial effect on local authorities and the way they manage deputyships.

In the first case Cumbria County Council v A [2020] EWCOP 38 - https://www.bailii.org/ew/cases/EWCOP/2020/38.html

Hayden J has ruled on a case where a local authority wishes to remove themselves as deputy in favour of a professional deputy. Given current financial constraints and a reduction in funding, local authorities are having to make decisions about the viability of their acting in cases.

The judge made it clear that when a local authority wishes to discharge itself from a role, the court would not automatically authorise the removal of the deputyship. There was also a suggestion that the approach taken by the local authority in identifying individuals it no longer wished to represent did not comply with s.149 of the Equality Act 2010. However, Hayden made it clear that the COP could not undertake such a review of this proposition.

The final paragraph of the judgement states:

“When the court comes to consider an application by a deputy to be discharged from the role it will, as I have analysed above, arrive at its decision by focusing on the impact on P of either granting or refusing the application. When approaching its task, the court will consider whether the application is consistent with the objectives of the MCA i.e. whether or not the application is motivated to promote P's best interests in accordance with the principles that I have identified.  

If the application appears to be driven by arbitrary or discriminatory criteria devised, for example to save costs, then the court (if it identifies them) will take them in to account to whatever degree is appropriate when coming to its decision. This will not be in consequence of a public law style review of compliance with Equality legislation, but rather the application of the principles of the MCA.  

The issue here is not one of jurisdiction (see N v A CCG [2017] UKSC 22), but of how the application should be approached within the framework of the Mental Capacity Act 2005. It is unnecessary to say more on the point.

Many local authorities will be considering their position on matters such as this, are they best suited to manage P’s property and affairs or would it be better suited for a professional deputy to be appointed in their place?

When I was deputy for a local authority, my team had limited resources and it was not always in the client’s best interests to have their affairs dealt with by my team. For instance, if they had a property, significant investments or assets more than the FSCS compensation level I would not seek to become deputy, instead I would seek to place the work with a trusted local solicitor.

This leads on to the second order from the court that has significant implications for local authorities, Re OT [2020] EWCOP 25 -https://www.bailii.org/ew/cases/EWCOP/2020/25.html

An application to manage the affairs of an 81-year-old woman was made by two proposed deputies. One was from a trust corporation, KKL, representing a charity who had worked with OT when she had capacity and had written and rewritten her Will. The other, Lynsey Harrison of Clarion, from a list of solicitors kept by Leeds City Council and approached by a social worker.

Leeds City Council operate a system whereby they use a pool of local solicitors. The trust corporation objected to the other solicitor being approached and acting, one of their arguments being:

That the arrangement under which Leeds City Council refers vulnerable people to a small pool of approved solicitors is somehow “cosy” or improper.

DJ Geddes observed:

“There is nothing wrong with such a system in my judgment and no evidence to substantiate the hint that it is somehow against OT’s interests.”

They also argued: 

“That it is somehow surprising that Ms Harrison is not being funded by Leeds City Council to make this application or to oppose the application of KKL.”

DJ Geddes stated:

“It certainly does not raise “serious questions” as asserted by Mr A in his skeleton argument. The role of Leeds Social Care was limited to making the referral through Lawdesk. They are not the client of Ms Harrison, nor is OT.

“There is a risk to Clarion Solicitors of taking such referrals in that if their application were rejected they might be left to bear their own costs of bringing the application which they do so purportedly in OT’s interests.

“Of course, in this limited sense they have an interest in either the success of the application or at least in not being criticised for bringing the application to the point of disapplication of the general rule about costs contained in rule 19.2 of the Court of Protection Rules 2017 namely that “Where the proceedings concern P’s property and affairs the general rule is that the costs of the proceedings... shall be paid by P or charged to P’s estate.”

Many local authorities choose to use a small panel of solicitors to undertake work on behalf of vulnerable clients as they are unable or unwilling to do so themselves. It is evident that local authorities have significantly reduced resources because of Covid and being able to fall upon a local list seems sensible and a wise precaution to have in place. This judgement seems, in my opinion to clarify that local authorities can maintain a list/pool of firms to use.

I am pleased to say that we will be discussing these decisions in our next deputyship event, a live webinar to be held on Wednesday 9th September. We will announce our panel during August, but the discussion will centre on these two extremely significant rulings from the Court of Protection.

You will be able to put questions directly to the panel of experts prior to the event and during the event. This free event will be held in place of our National Development Day which was due to be held in London on the 10th September.

PADSN is a free resource to deputyship and appointeeship teams. We provide free training days and advice where possible. You can contact us via email: [email protected] or by telephone: +44(0) 20 7490 4935


Time image

How Long Does It Take The OPG To Register LPAs

How long does it take the Office of the Public Guardian (OPG) to register Lasting Power of Attorney (LPA)? Today’s Wills and Probate reported that professionals had resorted to social media, lambasting the OPG for the length of time it takes.

While the issue has been ongoing for some time, it appears that the current coronavirus pandemic has exacerbated the situation.

Today’s Will and Probate reports that the Secretary of State for Justice, The Right Hon Robert Buckland QC, was asked two weeks into the lockdown what assessment he had made of the length of time taken to process an application and what steps his department were taking to ensure there were additional resources to process those applications during the outbreak.

45 day turn around

The department supplied an answer on 12 May, which was later updated to say that the time to process applications for LPAs had increased to 45 days, thanks to the pandemic. The OPG’s target to turn around LPAs is 40 days, but many professionals reported that they do not find this to be the case, and have queried the 45-day answer as some of them have been waiting since the end of the January for the information they need.

The answer from the department read:

“The Office of the Public Guardian (OPG) aims to register Lasting Powers of Attorney (LPAs) in 40 working days (this includes a statutory 4-week waiting period). OPG has seen an impact on the time taken to process an LPA since COVID-19 began affecting circumstances. As of 07/05/2020 the average time taken to process and dispatch an LPA was 45 days against the target of 40 days. As a comparison, the March average came in at 34 days, and the average of 40 days was achieved in 2019/20.

Social distancing affecting the process

“LPAs are paper documents that require a physical staff presence in an office to process and register, therefore these elements of the registration process have been affected by the need to maintain social distancing measures. Additionally, the staff numbers that are available to attend the office to carry out the physical activities are significantly reduced due to COVID-19 reasons (including shielding themselves and others).”

However, the OPG has said it is taking steps to address the issue. The measures it has put in place include providing overtime to staff who can come into the office and work through the backlog. Customers can now also pay for LPAs over the phone, and the OPG has been communicating with customers digitally, through email and phone. The Office has found a new offsite print and post solution so that staff do need to be in the office to post letters to customers.

Finders International runs regular events for public sector employees and others who work as deputies and seek LPAs for the clients in their care. You can read about the events further here.

The PADSN is an organisation which has been specifically created to help provide key assistance to public authority deputies across the UK. If you would like to learn more about THE PADSN or require assistance, you can visit our website here.  Alternatively, you can telephone: +44(0) 20 7490 4935 or email: [email protected].