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


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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].


E-Conference - Universal Credit Document

Following the E-conference panel conversation with Alison Taylor of Frenkel Topping on Universal Credit, we are publishing the latest guidance from the Department for Works and Pensions on the website. Please click on the link to view.

UC_Guide_Eng_May2020

 


Court of protection

An update from the Court User Group

The Court of Protetion User Group has published further advice for practitioners following the postponement of the group’s meeting on the 28th April.

The document, signed by Judge Hilder and Amrit Panesar (Court Manager), updates on the activities of the Court during the Coronavirus pandemic. Roughly 70-80 % of Court staff are working remotely, whilst there has been a continuous presence at First Avenue House.

Hearings are continuing during the pandemic and are being conducted remotely. Guidance has been updated on Hearings (see Guidance note 5). Video hearings have been made available at the discretion of the Judge. HMCTS are looking to fast track the implementation of a new platform for video hearings across the Courts service.

In a welcome change to existing protocol, the Court are now accepting COP20A and COP20B forms electronically. The Court have asked that applicants submit all forms together using the email address - [email protected] ensuring that the client name and court ref is in the subject field.

They stipulate that this is only to be used for COP20 forms and no other forms. However, they follow that news with further information about a pilot exercise allowing Court Users to submit COP forms electronically. Nothing is stated about the length of time this service will be available for.

The initial pilot study is due to finish at the end of July and the Court will assess its effectiveness and report back to the User Group. This is a welcome move to see the Court moving into the 21st Century and embracing technology and will make electronic workflows much more integrated into the process.

The document finishes with details of who to contact at the Court should practitioners have ideas or thoughts on how the Court can assist them. Details for ACO Ross Hamilton have been provided - [email protected]


Covid-19 - Supporting individuals

Supporting individuals needs has never been more paramount than during the ongoing pandemic.

The Office of the Public Guardian have recently updated their blog with guidance for attorneys and deputies during the Covid-19 pandemic with some useful guidance.

Entitled “Acting as an attorney or deputy from a distance” the blog reinforces the responsibilities and how to deal with cases whilst ensuring that you keep socially distant, suggesting that an attorney or deputy consider using all methods such as communicating with the individual via video conferencing tools, referring to past decisions and statements the individual had made, speaking remotely to carers.

The guidance is helpful as many private attorneys and deputies will be finding it hard to carry out their role whilst maintaining strict social distancing. It, of course, remains vitally important that any decisions made by an attorney or deputy are recorded and done so as thoroughly as possible.

The guidance on the OPG Blog, available here, does not make any suggestions about how to control or make payment of monies to an individual. Many Local Authorities have turned to pre-paid cards or have used a voucher system, such as Paypoint to ensure that individuals have access to cash. Other authorities have used online shopping with large supermarket chains to ensure that the individual gets food delivered to their doorstep.

Guidance from the Court of Protection has already been published and updated regularly during the pandemic.

Support for those who are clinically extremely vulnerable is available on the Governments website.


Covid-19 - DOLS in the pandemic

The Department for Health and Social Care (DHSC) has published guidance for health and social care staff who are caring for, or treating, a person who lacks the relevant mental capacity. The guidance looks at deprivation of liberty - DOLS.

The emergency guidance for decision makers ensures that they are clear about the steps they need to take during this period.

The full guidance can be found on GOV.UK here: https://www.gov.uk/government/publications/coronavirus-covid-19-looking-after-people-who-lack-mental-capacity

During the Covid-19 pandemic, care arrangements for someone who lacks capacity to make decisions are expected to change and these changes are extremely likely to be more restrictive. These will include, amongst others, restrictions on visitors, movement from the care setting and mixing with others. There will also be cases where the individual has to be moved to hospital.

The guidance published by the DHSC states that:

“in most cases, changes to a person’s care … in these scenarios will not constitute a new deprivation of liberty, and a DoLS authorisation will not be required. Care and treatment should continue to be provided in the person’s best interests.”

In most cases there will be someone to consult with and make decisions that restrict an individual’s liberty that are in their best interests. However, there may be disagreements or no family or friends available to discuss decisions with. Some of the changes will also have a powerful impact on some people restricting movement and liberty.

The most significant change in the guidance is in paragraph 9 where it states:

"Where life-saving treatment is being provided in care homes or hospitals, including for the treatment of COVID-19, then this will not amount to a deprivation of liberty, as long as the treatment is the same as would normally be given to any patient without a mental disorder. This includes treatment to prevent the deterioration of a person with COVID-19. During the pandemic, it is likely that such life-saving treatment will be delivered in care homes as well as hospitals, and it is therefore reasonable to apply this principle in both care homes and hospitals. The DoLS process will therefore not apply to the vast majority of patients who need life-saving treatment who lack the mental capacity to consent to that treatment, including treatment to prevent the deterioration of a person with COVID-19."

There is some case law that can be applied to these guidelines. In R (Ferreira) v HM Coroner for Inner South London and others [2017] EWCA Civ 31, it was ruled by the Court of Appeal that the individual, Maria Ferreira “was not deprived of her liberty at the date of her death because she was being treated for a physical illness and her treatment was that which it appeared to all intents would have been administered to a person who did not have her mental impairment. She was physically restricted in her movements by her physical infirmities and by the treatment she received (which for example included sedation) but the root cause of any loss of liberty was her physical condition, not any restrictions imposed by the hospital”.

Whilst this is applicable to hospital settings where lifesaving treatment is given, it’s difficult to see how this can compare with a care home setting. In the DHSC guidance there is no clear guidance on what lifesaving treatment would be given in a care home setting. There is always a scope for challenge, which could be difficult given the current restrictions in place.

There is some comfort for care settings in the guidance where it says if they have followed the principles of the Mental Capacity Act then “they have done everything that can be reasonably expected in the circumstances to protect the person’s human rights".

Annexe A of the guidance has a clear flowchart that can assist with decision-making and ensuring the right path is followed.


COVID-19 - OPG issue guidance

The Office of the Public Guardian (OPG) published guidance in relation to the COVID-19 pandemic this week.

They state that the...

"Office of the Public Guardian (OPG) will continue to deliver its services and support those who are planning for the future and at most risk in society. As we deal with the impact of coronavirus, we are working hard to maintain our services and have robust plans in place which will support us to do this.

We will regularly review our position and ability to operate, this might mean that our approach will change to reflect Government advice and guidelines. We will provide updates when relevant."

The full guidance can be read on GOV.UK here

 

 


Court of protection

Covid-19 - Guidance on COP Hearings

Guidance has been issued by the Vice President of the Court of Protection with respect to hearings and how they are to be conducted during the current Covid-19 crisis.

Issued on the 18th March the guidance states that:

  • the approach for the time being will be:
  • Hearings with time estimates of 2 hours or less will be conducted by telephone. The applicant should make the necessary arrangements as set out in COPGN5;
  • Hearings with time estimate of more than 2 hours will, in principle, proceed unless and until further guidance or specific application in the case (which will be decided by the judge hearing the case);
  • It is likely that there will be an increase in the number of hearings being conducted remotely either in whole or in part;
  • Where hearings are to be conducted by telephone or by skype, the court listings will be published in advance as usual and any updated guidance will be made public.

The key messages from the guidance are that hearings expected to last under two hours should be conducted by telephone, for hearings that are expected to last longer than two hours parties should take all possible routes to come to an agreement wherever possible but without compromising the interests of the client. Where it is not possible parties should seek a telephone/skype hearing having clearly identified the areas of agreement and disagreement.

Mr Justice Hayden goes on to state the pressure on Court staff at this time is barely sustainable and all professionals should do their best to alleviate the pressure as a “Professional Imperative”. He goes on to add that the “pandemic is causing great personal as well as professional anxiety. It is essential that you all keep yourselves as safe and as healthy as you possibly can.”

The full guidance can be downloaded here.


Coronavirus legislation implements swift changes

MP’s are to debate new legislation that will bring in a package of emergency measures to help tackle the coronavirus outbreak.

Whilst the legislation deals with a raft of proposals on public health grounds, medical provision and border controls, it also deals with the possible increase in mortality rates.

The legislation proposes significant changes to the way deaths are recorded, which includes the easing of requirements upon coroners to sign death certificates when other health practitioners aren’t available.

The proposed legislation will also allow funeral directors to register deaths on behalf of families if they are unable to make the arrangements due to being quarantined. Registrars will also be allowed to accept electronic copies of documents to carry out the registration.

The requirement for a second confirmatory medical certificate to be presented before a cremation takes place is to be removed to free up medical staff.

With regards to the “management” of deaths, local authorities will be allowed to streamline their services, which includes increasing the operating times for crematoriums and directing the movement of bodies.  This will include co-opting forms not involved in the funeral sector to provide support where necessary.

The National Association of Funeral Directors report, on their website, that they support these changes to legislation, calling on the government to ensure that funeral service workers are key workers. They state that they “believe the legislation, combined with ongoing dialogue at both a national government and local resilience forum level, will enable the funeral profession to properly care…at a very difficult time”.

Some local authorities have already taken measures to protect the public and staff during the outbreak. Several crematoria, including Yeovil Crematorium run by South Somerset District Council, have suspended public facing services during the outbreak. Staff at the Yeovil site will still be operating services and responding to telephone calls and email enquiries, but waiting rooms, offices and chapels will be closed to the public. Cremations will still take place, but all public services will be suspended due to social distancing. Grounds will remain open to the public.

Cllr Peter Gubbins of South Somerset DC stated that This has been an incredibly hard decision for us to make but the safety of the public and those that operate the site has to be our priority.

The risks of continuing to hold public services at this time are too great and we will be working with local funeral directors to ensure they are fully informed.

This is not something the council wants to do, nor takes lightly but, given the difficult circumstances, is a sensible course of action.”

(This article was originally published on our sister site - www.publichealthfunerals.org )

 


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First 2020 Deputyship events announced

PADSN are delighted to announce the first two Deputyship Development Days for Local Authority Deputies in 2020.

We head first to Manchester on the 23rd April, for details and how to book visit the site here. The next event is to be the first one held in Wales, on the 4th June, for details on the Welsh event visit the site here.

This year the events are sponsored by probate genealogists, Finders International,  and independent financial advisors, Frenkel Topping.

Both events will see speakers from Finders and Frenkel Topping, covering topics such as Investments, Welfare Benefits and how to trace next of kin. Both agendas will be published in the next few days and delegates can see what is on offer.

Although the events are aimed at Local Authorities who manage the finances of vulnerable people, private client solicitors and companies involved in managing financial people's finances are more than welcome to attend. It is a unique setting for those professionals to come together, understand each other's issues and network.

Both events are free of charge, lunch and refreshments will be provided.