Call for urgent action over power of attorney delays

This is Money has warned that solicitors are calling for urgent action to deal with the delay in grants of power of attorney, saying that clients are dying while awaiting this vital legal document.

Solicitors have said that it can take up to six months to register applications because of the backlog at the Office for the Public Guardian (OPG). In a letter, they have said that civil servants are making “unacceptable mistakes”, such as returning documents with ripped paperwork or the pages missing.

Previously, it took ten weeks to register for power of attorney, which gives family members or friends the legal authority to make financial or medical decisions on your behalf. However, there is now a backlog of up to 200,000 applications.

Signed letter from solicitors

Solicitors, estate planners and financial advisors signed the letter to the OPG. Katy Kirkland from the BEST Foundation, a non-profit organisation for estate professionals, said that no action had been taken so far to improve the problems.

A spokesperson from the OPG said it had recruited more staff and teams to work around the clock to reduce delays and that the number of lasting power of attorneys registered each month was now back to the pre-pandemic levels.

David Lockwood, Finders International’s senior business development manager, whose area of expertise include deputyship in the public sector, said: “It is crucial that the power of attorney is granted as quickly as possible when dealing with vulnerable people, so that the decisions that are in their best interests can be made. It is deeply concerning that people are dying while applications churn through the system and hopefully action will be taken to remedy this.”

 

We run a series of events to Public and Private Deputies, see here for upcoming and past events: https://www.publicdeputies.org/events-and-e-conferences/. For more information, contact us on [email protected].


Lasting Power of Attorney – in ‘urgent need of reform’

Research led by the consumer champion, Which? has suggested the Lasting Power of Attorney system is in desperate need of change.

Which’s survey, a questionnaire of 2,000 people UK-wide, showed there is widespread confusion about Lasting Power of Attorney works and that banks often put barriers in the way of people attempting to register as attorneys.

Lasting Power of Attorney (LPA) is a legal document that allows one person to make decisions on behalf of another if that person loses their mental capacity to do so, but it can only be registered while that person still has their mental capacity. Which?’s survey found evidence that many people did not know that registering for an LPA after someone had lost capacity was too late.

Lower understanding among younger people

In the survey, young people and those on lower incomes revealed lower understanding of LPAs than others – 26 percent of people aged 18 to 34 and one in five (20 percent) of those who earn under £21,000 a year said they did not know what power of attorney was, compared to 7 percent of those aged over 55 and one in 10 (10 percent) of those who earn over £56,000.

One in six (16 percent) thought wrongly that an individual loses access to their financial accounts once the legal document is registered. Which? thought this might explain why only one in seven (15 percent) people said they would give someone else power of attorney over their affairs.

Among those questioned who did not have an LPA, 70 percent said they were healthy so they didn’t need one, while 77 percent thought one could be set up at any time – again, an incorrect assumption.

Complexities of the process

Another Which? survey found that the issues reported for more than 8,000 of its members with a registered LPA were a lack of knowledge among staff (60 percent), complexities in the process (38 percent) and delays (28 percent).

Almost a third of people with registered LPAs, 31 percent, said banks were the most difficult to deal with, with claims of lost documents and failures to explain the registration process or require those trying to do so to make unnecessary trips to the bank.

The consumer champion said it heard from people who were asked to register at a bank’s branch even during the pandemic and even where online registration was possible.

Attorney problems

The research has also shown that attorneys experience problems when registering with banks or other financial institutions, with some not authorising full access to a donor’s account even after completing the registration process.

Last year, the Office of the Public Guardian (OPG) launched a consultation on modernising LPAs. The consultation looked at how technology can be used to reform the process of witnessing, improving access, and speeding up the service, as well as widening the OPG's legal powers to check identities and stop or delay any registrations that raise concern.

Which? said the proposals urgently need to be acted upon.

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


Testamentary freedom – the checks and balances there

Does having a will in place give you testamentary freedom? Not necessarily, Paul Hewitt of Withers LLP writes on mondaq.com.

Testamentary freedom, he notes, is the right to leave your money and assets to whomever you want, and a fundamental principle of English law. However, that sense of control is not always well-founded nor is it necessarily a good thing when there are new developments tempering that freedom.

Hewitt lists the way in which people in England and Wales do not have as much control as they think.

Losing capacity

The most common issue is when someone loses their capacity to make decisions as a result of an accident or serious illness, such as dementia. The Court of Protection can make a statutory will on their behalf, which should be based on the person’s best interests, but it will often not reflect that person’s true wishes and feelings.

It is possible for the Court of Protection can rewrite a person's will while they are still alive. This applies as well to people who have never made a will. Cases are usually anonymised to protect the incapacitated person’s identity. Hewitt quotes one case, Jones v Parkin, where the person had already died — Gladys Peek.

Gladys’ niece and great-niece had helped themselves to cars, jewellery and designer handbags from the money. The Court removed them from control of her money and approved a statutory will. The will listed the beneficiaries as two friends and a charity. As Gladys had never made a will, her niece and great-niece would have inherited the money according to intestacy laws.

Financial provisions claim

Other ways in which a person’s wishes can be overruled after they die include financial provisions claims. A dependent or close relative can claim that more provision should have been made for them. This will often apply in cases where a parent and child have become estranged.

Courts have wide discretion to decide someone has been unreasonable by not leaving anything or too little to their offspring. Hewitt quotes the case of Mrs Illot, who took her mother’s chosen charities to the Court of Appeal because her estranged mother did not leave her anything in her will.

Another financial provision case demonstrates the prevention of injustice. In the case of Bhusate v Patel, Mrs Busate argued against her late husband’s estate as she would have been left with nothing, as his will left everything to the children from his first marriage.

Forfeiture clauses

Making provision for people who have a reasonable hope of inheritance is wise, particularly if one couples this with a forfeiture clause, Hewitt says. A forfeiture clause sets out that the legacy will fail if the beneficiary tries to claim more.

There are also proprietary estoppel claims, which aren’t as common but tend to happen in farming families. Here, a person can argue that the deceased broke their promise to them, and they have relied on that promise to their detriment.

A case in point would be where a son or daughter helps run a farm thinking that they will eventually inherit the land, but instead it is left equally to them and other siblings who might never have shown any interest in the farm.

Provisions overridden

If someone is able to show that there was a promise and they took action because of that promise which was burdensome or otherwise detrimental, the provisions of the will can be overwritten.

Challenges to validity is the main way people obstruct wills, alleging undue influence, a lack of capacity on the part of the testator or even fraud. This often arises in cases where mental incapacity has set in. Professional will writers taking instructions and drafting wills need to take a great deal of care in such cases.

As probate trails are incredibly expensive, compromise will often settle disputes. There’s an element of risk in probate trials because the main witness—the testator—is dead, so protagonists often opt to settle cases out of court.

Jarndyce v Jarndyce

Hewitt warns of the common misconception that the costs will come out of the estate, quoting the case of Jarndyce v Jarndyce in Charles Dickens’ Bleak House novel, which centres on the long and drawn out fictional probate case where in the end the costs of the case consume the whole property.

It is much more common for the loser to pay the winner’s costs, as well as their own, making losing catastrophic. As costs aren’t always recoverable, winning isn’t the be all and end all either. If the deceased has ordered that a favoured child receive everything, that child is well advised to offer the estranged child something.

Those without deep pockets should think very carefully about letting their principles win over commercial analysis of the situation.

The above points, Hewitt notes, are a series of “imperfect checks and balances” that seek to preserve testamentary freedom and mitigate against abuse. Well-drafted wills, he adds, will be difficult to challenge. Testators should brief their adviser properly, explaining their reasoning for promises made or obligations owed, and if no-one with a financial interest is involved in the process of making that will, again this will help it withstand challenges after the testator dies.

Read the full article here. The above is not intended as legal advice and is only provided for informational reasons.

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


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.