There is a presumption, as set out in section 1(2) of the Mental Capacity Act 2005, that a person does have capacity.  Where that has been displaced, to regain decision making powers an order of the Court of Protection is normally required.

In the case of MB v Surrey County Council [2007] EWCOP 25B27 a person made an application challenging a standard authorisation made under the deprivation of liberty safeguards.  The application was made to the Court of Protection through his representative, that he be allowed to leave care and move to independent accommodation.  This was a second application in that an earlier application in 2014 had failed, owing to the judge saying that there was a “huge risk” in such a move.  The protected party had autism and complex severe epilepsy. If unattended his epilepsy could be life endangering, hence he was held in a residential care home.

It is possible to make multiple applications, normally on the basis that a person’s condition can changes over time. However, here the protected party’s condition seemed stable. Despite that, in the second application the jointly instructed expert reported that he did have a capacity to make decisions as to his residence and care.

The Local Authority objected and unusually, the Court of Protection allowed the second expert, as there were “very significant issues at stake”.  The local authority took a view that the protected party would make potentially harmful decisions that might put his health at risk.

The second expert also agreed that he had capacity, however that capacity “could fluctuate during times … when his anxiety rose and he became distressed because of environmental triggers”.

Where a person has fluctuating capacity, the Courts may allow an order to made, however much depends on the support available and the likely length of intermittent incapacity. There is no guidance in the MCA on where the line should be drawn in complex cases such as this. The Deprivation of Liberty Code of Practice at para 8.22 does indicate that an authority should remain in place were the periods of capacity are limited. However, there is no statutory footing for this. Unsurprisingly the Law Commission is looking to put forward legislation to address this issue.

In this case, we are not aware as to what happened once the Court withdrew the authorisation. The local authority would have had no right to retain him within residential care and he could walk out whenever he chose.  He may have made an unwise choice, however, in practice one would hope that the local authority would have been involved in setting up an alternative care plan, despite their concerns as to the inadequacy and risks of the same.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

We frequently assist with the purchase and adaption of properties for disabled clients.  This usually occurs after the settlement of a litigation claim for damages, where the injured party, often with support from their Deputy, will consider buying a suitable property for P to meet their long terms needs.  Before commencing the search for a suitable property, the Deputy might consider any accommodation expert’s report prepared in the claim, the wider costs of the purchase, budgeting and affordability and the practicalities of a move.

Many of our clients have suffered long term cognitive and mobility impairments. As such, another crucial point to consider is whether the chosen property can be adapted to meet P’s needs and if so, what the costs of the adaptations works will be.  As part of that process, we have a duty to consider whether a Disabled Facilities Grant (DFG) will be available to fund part of the proposed works.

A DFG is a grant that you can receive from the Local Authority if you are disabled and need to make changes to your home to meet your needs. There is an eligibility test for funding, which includes means testing in most, but not all circumstances. DFG funding cannot be obtained retrospectively therefore it is important that the application is submitted to the relevant local authority before any building works commence.

The Local Authority will consider project drawings and costed quotes from contractors when considering the merits of the application. A DFG grant can cover various works, including assistance with resolving access problems such as widening doors, installing ramps and stair lifts. What the grant covers depends on the individual needs of the home owner and an architect and specialist housing OT should be able to highlight what the Local Authority funding officer should be considering. The maximum amount you can receive from a DFG is £30,000.00 in England. This may be paid in a lump sum or in instalments following an inspection of the works by the relevant DFG funding officer. Receiving the grant will not impact on means testing for state benefits.

The deputyship team at Anthony Gold work on many large scale and complex building projects and have successfully applied for DFG funding for the projects.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Last year HMRC introduced the new Trust Registration Service (TRS). At that time HMRC set out that all trusts incurring a ‘relevant tax liability’ for the first time during the tax year 2016/2017 must be registered on the TRS by the 5 March 2018. Any trust already registered and incurring a tax liability in the year 2016/2017 had a registration deadline of the 31 January 2018.

Earlier this month, HMRC, for the first time, published details of the penalties which would be incurred for late registration.

The announcement was as follows:

‘On 8 December 2017, HMRC announced that while the 31 January 2018 deadline for making a Trust Registration Service (TRS) return would remain in place, we would not charge a penalty if trustees, or an agent acting on behalf of the trustee, failed to register their trust on the TRS before 31 January 2018 but no later than 5 March 2018.

HMRC will not automatically charge penalties for late TRS returns. Instead we will take a pragmatic and risk-based approach to charging penalties, particularly where it is clear that trustees or their agents have made every reasonable effort to meet their obligations under the regulations. We will also take into account that this is the first year in which trustees and agents have had to meet the registration obligations.

While our information suggests that most TRS returns have been filed, if you have not yet completed your TRS registration(s), you should do so as soon as possible.

 

When penalties can be issued

Penalties can be charged for administrative offences relating to a relevant requirement.

These are:

• a requirement to register using the TRS by the due date of 31 January after the end of the tax year in which the trustees pay tax on trust assets or income and
• a requirement to notify any change of information by the due date of 31 January after the end of the tax year in which the trustees pay tax on trust assets or income.

 

The administrative offences penalty

HMRC will charge a fixed penalty to reflect the period of delay:

• Registration made up to three months from the due date – £100 penalty
• Registration made three to six months after the due date – £200 penalty
• Registration more than six months late – either 5% of the tax liability or £300 penalty, whichever is the greater sum.

There is currently no facility to notify HMRC of any change of information online and, as such, we will not charge penalties for a contravention of this requirement until the online function is available.

A penalty will not be payable if we are satisfied you took reasonable steps to comply with the regulations’.

 HMRC also has the power to apply a penalty for money laundering offences under the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017/692.

These offences are more serious than administrative offences. HMRC will not bring these penalties in immediately. HMRC will consult on the structure of these penalties later this year, to ensure the penalty regime is fair and proportionate whilst cracking down on money laundering offences.’

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

The case of the poisoning of Sergei and Yulia Skripal in March 2018 has had significant media attention. The domestic and international consequences following this attack have been widely reported in the media.

Sergei and Yulia Skripal (father and daughter) were poisoned in Salisbury with a chemical weapon that has been reported to be the Novichok nerve agent. Both remain in hospital under heavy sedation currently unable to provide consent to any treatment or medical procedures. It is likely that the poisoning will have caused long-term and extensive damage affecting their mental capacity.

An urgent application was made to the Court of Protection by the Secretary of State, for authority to collect fresh blood samples from Mr and Ms Skripal to enable further testing of the chemicals contained within their blood and to undertake in-depth analysis of the presence of the nerve agent.

The Secretary of State applied for welfare orders in respect of the victims and sought access to Mr and Ms Skripal’s medical records from the relevant NHS Trust to aid their investigations. Access to medical records was only required since the date of the nerve agent attack, historical records not being required. The matter was heard in private however it was recognised that the reasons underpinning the application were “unique” and of “the utmost gravity” hence the judgment was published in accordance with the relevant procedural rules.

Whilst the Judge was unable to ascertain Mr and Ms Skripal’s past or present wishes or feelings to consent to the proposed procedures and the disclosure of the medical records, it was deemed reasonable to approach the decision on the basis of how “a reasonable citizen would approach matters” having been “subjected to an attack of any sort”.

It was stated by the Judge that most reasonable citizens would wish to understand what had happened to them following such an attack and that most citizens would wish to discover how a crime had been committed. There would most probably be a strong feeling of wanting justice to be done which would very likely extend to cooperating with investigations, such as the provision of blood samples and the release of medical records.

Further, obtaining the blood samples was in general terms a routine mater and not deemed to be harmful to Mr and Ms Skripal in any way, nor would it likely affect their respective clinical conditions. Whilst the procedures would have very little impact on their conditions, the benefit of investigating the toxins from blood samples taken from living individuals would provide far more in the way of investigative evidence to consider any future treatment and the nature of the poison within their bodies. The Court was very much “in favour of taking the samples” having evaluated the overall balance of the best interest’s decision making under the Mental Capacity Act 2005.

Some children or young people who have complex educational needs require additional support to enable them to meet those needs. In the past, the support required to meet such needs was detailed in a document known as a Statement of Special Educational Needs (Statements). Statements have now been replaced by Education, Health & Care Plans.

As the name suggests, an Education, Health & Care Plan is a legal document that describes the child or young person’s educational, health and social care needs. It should also specify how those needs should be met, including who should deliver the support and the frequency/duration of the support.

Transfers from Statements to the new Education, Health & Care Plans have been phased in over the last three years. All transfers are due to be completed by 1 April 2018.

If your child still has a Statement on 1 April 2018 the local authority will still be responsible for delivering the support included in the Statement. In a letter to the local authorities dated 12 September 2017, Minister Goodwill confirmed that any Statement of Special Educational Needs for which a transfer review has not been completed by 31 March 2018 will continue to remain in force from 1 April 2018 until a transfer review has been completed and a decision is made about future provision. This ensures that children and young people who have Statements, for which a review has not been completed by 31 March 2018, do not lose support. For these children and young people, the local authorities will remain responsible for ensuring that the provision in their Statements is met. The Statement as a whole continues to apply until the transfer process has completed.

That being said, it is important to ensure that there is a formal transfer of the Statement to an Education, Health & Care Plan, particularly if the young person is due to leave school to attend another educational setting. You should therefore ask the local authority to carry out an Education, Health and Care Needs Assessment as soon as possible. This should incorporate up-to-date information and advice from relevant education, health and social care professionals involved with your child or young person. It is important to ensure that the child or young person’s needs and support required to meet those needs are accurately detailed in the new plan. The child or young person should be invited to attend the review meeting to discuss whether any changes are required to the existing plan. The final Education, Health & Care Plan should be issued within 18 weeks from the start of the transfer process.

Our Court of Protection Department supports children and young people who lack capacity and who have special educational needs to ensure that they are receiving the right support to meet those needs. If you have any queries in relation to your child’s Statement or Education, Health & Care Plan please contact Nicola Gunn on 020 7940 4057 or e-mail to njg@anthonygold.co.uk.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

The purpose of today is to raise awareness of mental capacity and improve the implementation of the Mental Capacity Act in health and social care and also other sectors, such as legal, finance, police and housing.

The Mental Capacity Act 2005 came into force in 2007 and applies in both England and Wales. Its primary purposes is to provide a legal framework to those acting and making decisions on behalf of individuals who lack capacity to make decisions for themselves.

In August 2016 the Social Care Institute for Social Excellence reported that there are around 2 million people in England and Wales whom lack capacity to make decisions for themselves. In addition they also reported that those individuals are cared for by around 6 million people, including health and social care providers, doctors, social workers, solicitors, support workers and unpaid carers.

It is the role of those 6 million people to ensure that individuals are, as far as possible, empowered to make their own decisions.

There are 5 key principles under the MCA 2005 which must be applied when supporting an individual to make a decision. These are as follows:

1. A person must be assumed to have capacity unless it is established that he/she lack capacity;
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to so do have been taken without success;
3. A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision;
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or make, in his/her best interest;
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s right and freedom of action.

If it is determined that an individual lacks capacity then any decisions made on their behalf must be made in their best interest and in accordance with the MCA.

This can often be a complicated and difficult process. This is particularly so for deputies appointed by the Court of Protection and where P has significant and complex legal and financial decisions that need to be made on their behalf. The test must be applied by the decision maker to each specific decision and whilst an individual might have capacity to make straight forward decisions such as what to buy in their weekly shop, they may lack capacity to make more complex decisions i.e. where they should live and recovering assets following financial abuse.

We are appointed by the Court of Protection as a property and affairs and welfare deputy to over 100 individuals whom are vulnerable because of brain injury, mental health and/or other disabilities. As such we have extensive experience applying the provisions of the MCA and advising individuals on its application.

As a firm we also have significant experience providing a range of advice to and for the benefit of vulnerable individuals and we pride ourselves on ‘helping those whom most need it’. As such, we welcome a signature day like today which recognises the importance of protecting vulnerable individuals whilst promoting their independence.

In 2017 the Office of the Public Guardian (OPG) released a useful practice note (PN6) with guidance on what Court of Protection Visitors are, their role and the release of their reports.

There are 2 types of Court of Protection Visitor, defined under section 61 of the Mental Capacity Act 2005 namely, Special Visitors and General Visitors.

1. 1. A Special Visitor: is a registered medical practitioner (or has other suitable qualifications or training) with special knowledge and experience of mental incapacity, which is defined as an impairment of or disturbance in the functioning of the mind or brain.
   2. General Visitors: do not need to be medically qualified but with experience of mental incapacity

The role of Court of Protection Visitors is to assist the OPG to supervise deputies, investigate any concerns that may have been raised about their actions and predominantly to produce reports of their findings to the OPG which may assist the Court of Protection with its decision making. Their authority stems from section 49(2) and 58(1)(d) of the Mental Capacity Act 2005.

In order to complete their reports, Court of Protection Visitors are entitled to access health records, care records and any social services records from the local authority about the protected party (the person lacking capacity). They can also interview protected parties in private.

Court of Protection visitors can carry out visits throughout England and Wales and are appointed by the Lord Chancellor. Although they can visit anyone they are directed to by the Court, it most commonly includes a visit with the protected party themselves, their Court appointed Deputy or any attorneys appointed under a Lasting Power of Attorney.

Release of a report by the Court of Protection

Any report produced by a Court of Protection visitor before 1 October 2007, before the Mental Capacity Act 2005 came into force, requires the Court’s permission to be released and will only be supplied if the Court considers it appropriate to do so.

In accordance with the current Court Rules, reports prepared for the Court can be released to the following people, unless the Court orders otherwise:

• The applicant (i.e. the person that made the application to the Court of Protection, e.g. the proposed deputy or attorney);
• The protected party or any respondent to the application;
• Other parties the Court has stated to be involved in the case and has an interest in seeing the contents of the report.

Anyone else can apply to the Court under rule 17 of the COP Rules for a copy of the report by using form COP9. There is no fee for making the application, although the request for disclosure will need to be made with appropriate evidence in support.

Release of a report by the OPG

Under regulation 44 of The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 the OPG can release a report to anyone the visitor has interviewed for the purpose of preparing the report. This is wide ranging and could include a deputy, donor, attorney, relative, carer or any third party.

The report can also be supplied to the police or a local authority during an investigation.

However, the OPG can choose not to release a report or to redact it to protect the identity of someone.

For more detailed information on this subject, the full Practice Notice can be accessed by clicking here.

Every day, millions of people wake up, go to work, pay their bills, build their lives and communicate with the world.

However, for many of our clients managing the complexities of daily life is impossible due to physical or mental illness.

If an individual is deemed to lack capacity to manage their property and affairs, the Court of Protection can appoint a Deputy to manage their finances, property and affairs. It is then the Deputy’s responsibility to act in the best interest of the person in need (‘’P’’) and make sure that their assets are safeguarded and accumulated to last a lifetime.

A Deputy can deal with all day-to-day financial administration that most of us take for granted, but that our clients cannot deal with. We are experienced in assisting incapacitated clients with financial administration which includes daily payments as well as more complex considerations such as investments, buying or selling a property, undertaking specialist adaptions to houses for the physically disabled and drafting Wills.

As Deputies it is imperative to ensure that the funds available to P are managed efficiently to last P’s lifetime and that we are able to sustain the annual cost of care and medical treatment which can in some cases cost in excess of £200,000 per annum. We have a duty to invest our clients’ money and engage with finance professionals to make sure we maximise the available funds for P.

Deputies are supervised by the Office of the Public Guardian and Deputies must submit annual reports and answer any questions the OPG might have about the way in which the fund is managed. This might involve review meetings or disclosure of historic transactions.

Every case is different and each client needs to be handled with the utmost care and attention to make sure their specific needs are properly met.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

When an individual is given the significant power of managing another person’s property and affairs – whether this is under a Deputyship order or an LPA – it is important that they do so with appropriate Court authority and within legislative boundaries.

The issue of deciding to gift another person’s money whilst acting as their Deputy or Attorney has for many years been the subject of interesting case law before the Court of Protection.

The guiding principle in these cases is that one should not make gifts from an incapacitated person’s estate except on ‘customary occasions’ to ‘someone related or connect to the person’ of ‘not unreasonable value’.

The Court of Protection can exercise its discretion on these matters and varying guidance has arisen within case law (often turning on specific factual circumstances) that has caused some confusion about the proper approach to these often-difficult decisions.

The Office of the Public Guardian (OPG) has recently issued a helpful practice note offering guidance to Deputies and Attorneys on how they might approach the issue of gift giving when exercising their powers, Click here to read more.

The overarching principle remains that any decision made on behalf on an incapacitated person should be undertaken in their best interests by considering the principles set out in s. 4 Mental Capacity Act 2005. One should also consider whether the person can take any active part in the decision-making process or indeed has capacity to understand the reasoning behind the proposed gift.

It is often erroneously thought that being appointed by the Court as Deputy, or as Attorney under an LPA, provides unrestricted decision-making authority. That is not the case. The OPG helpfully gives examples of gifts that would certainly require prior authority the Court of Protection. Those include:- making an interest free loan from the incapacitated person’s fund; selling a property at an undervalue or seeking to change the contents of a Will to favour a specific beneficiary in a manner contrary to that envisaged by the Testator at the time of drafting.

Whilst Attorneys acting under an LPA must have regard to the terms of the power appointing them, it should be noted that the power given under an LPA must ‘only restrict the powers the law gives attorneys’ as opposed to expanding those powers. In practice, this means that if an LPA is drafted broadly so as to purport giving the attorney wide discretion to make significant gifts from a person’s fund, that specific provision within the LPA is likely to fail. An example of a provision that could fail might be “I give my Attorney authority to make gifts of up to £50,000 per annum from my assets in any manner or to whom he feels is appropriate”.

If a Deputy is proposing to pay a family member for the care that they are providing to an incapacitated individual, then authority for making such payments should in most cases be sought from the Court. These payments might be regarded as a gift if not property disclosed or authorised. Professional Deputies have a wide discretion to agree payments for care, but lay Deputies should seek advice and Court approval before committing to any such arrangements.

The OPG rightly reminds Deputies to exercise caution if they are contemplating making a gift over to themselves from the incapacitated person’s fund. It is important that Deputies and Attorneys do not breach their fiduciary duty or take advantage of the position to which they have been appointed.

If a Deputy or Attorney makes any unauthorised gifts they might be subject to investigation by the OPG. Where the contravention of authority is serious, the police might be asked to investigate the conduct because as highlighted by the OPG “fraud by abuse of position is a criminal offence under section 4 of the Fraud Act 2006”. If you are a Deputy or an Attorney affected by any of these issues please contact Alexandra Knipe at Anthony Gold Solicitors for further advice.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Property and affairs deputies and attorneys have a duty to ensure that they consider a client’s succession plans as far as possible when making financial decisions on behalf of an individual who has lost mental capacity.

By having knowledge of the content of the Will they can ensure that before making certain decisions about an individual’s finances they are not interfering with their succession plans and are therefore making decisions in the best interest of that individual.

In March 2017 the Law Society issued guidance to clarify when a solicitor holding a clients Will can disclose a copy to an attorney or property and affairs deputy. The guidance can be found here.

The guidance clarifies that a Will is a client’s property and forms part of an individual’s financial affairs. As such, if there are no instructions made by the donor/protected party (P) or the Court which prevent disclosure, a copy of a Will can be disclosed to an attorney or deputy.

Where possible the donor/P should be notified by the attorney or deputy personally of any request for disclosure.

Where a request is made by an attorney, the guidelines state that it would also be good practice for the disclosing solicitor to write to the donor and seek their consent before disclosing a copy of the Will. If the solicitor receives no response or objections and they have no cause for concern, the Will should be disclosed to the attorney.

Where a deputy is acting, their powers are wide and the order of appointment order in itself enables the deputy to see a copy of the Will. The guidance sets out that it is a decision for the deputy to make as to whether P has sufficient capacity to authorise disclosure or whether the deputy can rely on their powers inferred by the existence of the court order. In such circumstances it would be good practice for the disclosing solicitor to ask the deputy to confirm that P has either consented to disclosure or the deputy has satisfied themselves that P lacks capacity to consent.

However, if the client has specifically given instructions to their solicitor for their Will not to be disclosed prior to their death, it should not be disclosed without their consent or without an Order from the Court of Protection.

Equally, if an LPA specifically restricts an attorney from acting until the donor lacks capacity, a Will should not be disclosed by a solicitor until they have satisfied themselves that the donor does indeed lack capacity.

If a solicitor has information which gives reasonable cause for concern about disclosing a Will to a deputy or attorney and/or they do not believe it is in the client’s best interest to do so, a refusal notice should be issued and any concerns should be reported to the Office of Public Guardian.

If you are an attorney or a deputy and have any questions about disclosure of a Will or your powers generally, you can call our Court of Protection team on 020 7940 4000 for further advice and assistance.