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Here at Stephensons we have a dedicated team with experience of contested Court of Protection matters. Our specialist Court of Protection team deal with disputes in respect of property and affairs in addition to health and welfare disputes.
Our expertise includes:
We can advise appointed attorneys or deputies who are defending challenges by other family members or third parties, including responding to applications to the Court of Protection made by the OPG to remove them.
It is sometimes possible to resolve a dispute prior to issuing proceedings in the Court of Protection.
The Court of Protection is a specialist court which can make financial or welfare decisions on behalf of those who lack the mental capacity to make a particular decision for themselves.
In accordance with the Mental Capacity Act 2005, an appointed attorney or deputy can deal with the day-to-day decisions for ‘P’, such as managing their finances.
The person at the centre of Court of Protection proceedings is known as a protected party and is generally referred to as ‘P’ throughout the proceedings.
A Lasting Power of Attorney (LPA) is a legal document which allows a person (the donor) to appoint one or more people (known as attorneys) to manage their affairs on their behalf. A donor may decide to create a lasting power of attorney for their property and affairs, or health and welfare, or both.
If a person didn’t put a valid lasting power of attorney in place before they lost mental capacity, an application to the Court of Protection for a deputyship order will be required before somebody can take over the management of their affairs. Applying for a deputyship order is a more protracted and expensive process than creating a lasting power of attorney.
The donor of a Lasting power of Attorney has complete freedom over who they choose to appoint as their attorney(s).
The Court of Protection will ultimately decide who is appointed as a deputy, but usually prefers to appoint a family member or close friend if that is a suitable option (and the proposed deputy is willing to act). If there is nobody suitable to act, then the court may look to appoint a professional or panel deputy (often a solicitor or Trust Corporation).
The attorney or deputy has a duty to act in P’s best interests at all times.
When an application to register a lasting power of attorney or appoint a deputy is made, anybody with an interest in P’s welfare should be notified.
If you have received a notice, you might have concerns about the proposed attorney or deputy and whether they are a suitable candidate for the role.
To object to an application, the person notified must be able to provide evidence to justify their objection.
The Court of Protection expects parties make attempts to resolve disputes outside of court proceedings where possible, so it is important to seek legal advice if you are intending to object to an appointment.
Often a proposed or appointed attorney or deputy is a family member or close friend, and substantial disagreements can arise. There are often several factors to consider, and differences of opinion, when deciding what is in the best interests of a person who lacks capacity.
There might be disagreements about how they decide to manage P’s money (including decisions to buy or sell property or to invest capital).
You might also have concerns that the attorney or deputy is failing to manage P’s property and affairs adequately.
Issues can arise if there are concerns that P is being taken advantage of financially by their appointed attorney or deputy. This might include instances of financial irregularities in P’s accounts or concerns that the attorney or deputy is using the funds for their own benefit.
Attorneys or deputies are sometimes authorised to make certain gifts out of P’s assets. If the gift is substantial and / or not on a ‘customary occasion’ then approval from the Court of Protection should be sought.
If you have concerns about unauthorised gifts made out of P’s assets, then it is important to seek advice.
Some examples:
There are sometimes situations where disputes arise relating to powers of attorney which can lead to hearings in the Court of Protection. For example:
You may have recently been served with a notice that a family member is trying to register a Lasting Power of Attorney (LPA) with the court. You may wish to dispute this as you consider that power is being granted to the wrong person, or your loved one does not have the necessary capacity to make the power of attorney in the first place.
You may be aware that an attorney is already acting under an LPA but you have doubts as to the actions they are taking / are concerned that they are not acting in the best interests of your loved one.
You may also be an attorney who is being challenged by other family members.
You may be unhappy with the proposed appointment of a deputy or that a deputy is not acting in the person’s best interests. Alternatively, you may be a deputy who is facing a challenge to your conduct.
Where it considers that an attorney or deputy is not acting in P’s best interests, the Court of Protection can revoke the LPA or deputyship.
In these circumstances the court could decide to appoint an independent panel deputy as a replacement, whose professional costs in acting as deputy would then be borne out of P’s estate.
The Office of the Public Guardian (OPG) is a government body that polices the activities of attorneys and deputies who have been appointed to act on behalf of a person who lacks mental capacity.
The OPG is authorised to investigate allegations of misconduct or abuse by attorneys or deputies and acts as a safeguard to protect P’s best interests.
Anybody who has concerns about an attorney or deputy can report them to the OPG.
If the OPG is carrying out an investigation into an attorney or deputy’s conduct, however, this doesn’t necessarily mean that there has been any wrongdoing and in some circumstances an investigation may result in no further action being taken.
If you have received a letter from the OPG to notify you that you will be investigated then you should seek legal advice at the earliest opportunity, and it may be necessary to instruct legal representatives to act on your behalf in defending any action.
There are limits on the powers of a deputy when managing a person’s property and financial affairs, and they would not be permitted to make a Will on behalf of the person who lacks mental capacity.
If the person didn’t make a Will prior to losing mental capacity, then it might be necessary to make an application to the Court of Protection for a statutory Will.
An application might also be required if the person did make a Will, but there has been a significant change in their family or tax circumstances since they lost capacity.
Beneficiaries or potential beneficiaries of a statutory Will should be notified of an application for a statutory Will and if they are not satisfied with the contents, they may object to the application.
It may also be necessary to object to an application for a statutory Will if you believe that the person does in fact have testamentary capacity (that is, the necessary mental capacity to make their own Will).
Contested property and affairs applications are dealt with on a private paying basis. Legal Aid is not available in this area of law.
The general rule is that the costs will be borne by P’s estate, however, this only applies if you act reasonably at all times. If the court thinks that you have acted unreasonably or in ‘bad faith’, you could face having to fund both your own and your opponent’s costs.
It is therefore crucial to seek legal advice before responding to an objection or application as it is important that you can justify your conduct to the court. You will also need to comply with the formalities of the Court of Protection in lodging your application. This can be quite complex and we advise that you use a solicitor to do this.
If you are an attorney, you may have been contacted by the Court of Protection in relation to an objection to your appointment, or to the way that you are handling the estate. Under these circumstances, it is crucial that you take legal advice as soon as possible and obtain legal assistance to defend any action against you, and to justify your conduct so far.
If you are involved in a dispute relating to powers of attorney or have another matter to discuss in regards to the Court of Protection, get in touch with Stephensons today. Our legal experts will be able to discuss your case and answer any questions you might have. Call us on 01616 966 229 or fill out our online enquiry form and someone be in touch with you as soon as possible.
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