Court of Protection Archives - Parklane Plowden

Timely Intervention in the Court of Protection: Lessons from Cardiff and Vale University Health Board v NN [2024] EWCOP 61

Cardiff and Vale University Health Board v NN [2024] EWCOP 61  Avaia Williams, a first six pupil under the supervision of Sara Anning and Rebecca Musgrove, explores the judgment of the Court of Protection in Cardiff and Vale University Health Board v NN [2024] EWCOP 61.  Full Judgment can be found <a href="https://www.bailii.org/ew/cases/EWCOP/2024/61.html" target="_blank" rel="noreferrer noopener">here</a>.  The recent Court of Protection decision in Cardiff and Vale University Health Board v NN has reiterated the commentary on the timing of applications in cases involving complex medical treatment decisions. The case involved NN, a vulnerable adult with a history of substance abuse and schizophrenia, detained under the Mental Health Act 1983, who sought a termination of her pregnancy. This judgment emphasising the importance of timely applications when the need for court intervention becomes foreseeable and highlights the issues that can occur when timeliness is put to one side.  Background and Facts  In August 2024, NN was approximately 18 weeks pregnant and had consistently, though at times hesitantly, expressed her desire for a termination – such hesitancy may be entirely apparent in most individuals who are thinking about termination, it is a decision made not without such grappling. The Cardiff and Vale University Health Board sought a declaration that it would be lawful to proceed with the termination if NN chose to go ahead, acknowledging that restraint or sedation might be necessary should NN change her mind mid-procedure. This application was complicated by the health board's concerns that, at an irreversible stage, NN might refuse further treatment or intervention, potentially risking her health if not managed appropriately (an obviously envisaged situation may include catastrophic bleeding).  NN’s case reached the Court of Protection under urgent circumstances, as by the time of the hearing on 12 September 2024, she was already in her 21st week of pregnancy, with only days remaining before the termination would no longer be possible under the Abortion Act 1967’s time limits. The urgency was only compounded by delays in the application process, which the Court was specifically critical of.  Judgment and Findings  Victoria Butler-Cole KC, sitting as a Deputy High Court Judge, confirmed that NN lacked capacity to make decisions regarding the termination of her pregnancy. The court thus declared the health board’s proposed treatment plan lawful and authorised, but only insofar as it aligned with NN’s expressed wishes. The court underscored that the health board was “not inviting the court to make a best interests decision” regarding the termination itself but sought only to ensure that the necessary procedural support and monitoring could be provided should NN proceed with her choice. The judge stated clearly:  “The treatment plan made clear that it was NN's choice whether to have a termination or not, and that no best interests decision would be made for her, notwithstanding her lack of capacity.”  However, the court was critical of the health board's delay in bringing proceedings. The delay resulted in NN undergoing a late-stage termination which led to further distress, not only for her but also for her family and medical staff involved. As the judgment noted:  “Four weeks was simply too long. In my judgment, an application should have been prioritised and made at the very latest by 26 July 2024. If it had been, a decision would likely have been made by the court by mid-August, rather than mid-September. While that may not have made any difference to the type of termination NN had, it would have saved her a month of waiting and wondering why her expressed wishes were not being acted on as her pregnancy progressed.”  Ultimately, NN’s frustration with the delay was expressed through her repeated requests to the staff to know “why a date for the procedure had not been set.” The court acknowledged the psychological and physical burden this placed on NN, as well as the prolonged anxiety for her family. The judge, therefore, issued an adverse costs order, requiring the health board to pay “100% of the costs of the Official Solicitor in this application.”  The court also used this case as a reminder for all practitioners of the importance of timely intervention, quoting the Official Solicitor’s guidance that applications related to complex medical decisions “should be regarded as a medical treatment issue of the utmost urgency.” The judgment emphasises:  “The negative impact goes wider than just NN. Her mother told the Official Solicitor’s caseworker after the procedure that this has been the worst experience of her life and that it was ‘absolutely barbaric.’ She was clearly traumatised by watching her daughter having to continue her pregnancy well into the second trimester despite having requested a termination, and then supporting her through a late medical termination which resulted in the baby being born alive.”  In commenting on the broader implications, the judge added that “serious thought should be given to how likely it is that those measures will be needed,” referring to the anticipation of deprivation of liberty during medical procedures.  This judgment reiterates that timely applications can help avoid escalated complications and distress, especially for those already faced with significant struggles (NN was during all of this detained in a psychiatric hospital). As the judge noted, “perfect may well be the enemy of the good” in urgent treatment cases, urging practitioners to prioritise the patient’s immediate welfare over perfectionism in evidence-gathering.  Commentary and Implications  The case emphasises a recurrent theme in Court of Protection judgments: the need for prompt application when it appears that a case may require court involvement. The judge reaffirmed that court intervention is not mandatory where there is a professional consensus in line with MCA provisions and where the agreed treatment is not to be forced upon P, but that “serious thought should be given” to whether a DoL order may realistically be needed and if so, to apply without delay.  The message here aligns with the judicial consensus and guidance, that a timely application not only ensures that patients are spared prolonged distress but also minimises the complexity and risk associated with more advanced procedures. The judge noted that “unnecessary” applications, if issued early enough, may be withdrawn with minimal impact; the harm lies in applications made too late to avoid potentially preventable distress. Put simply, it is better to make an unnecessary application than to wrongfully fail to apply!  The Health Board’s delay highlighted several procedural breakdowns, including a lack of legal representation in key meetings that prolonged decision-making, and staff absences. The court remarked that these factors do not excuse a delay in proceedings where “every day that passed meant the options for NN narrowed.” This case reinforces that, where time is critical, legal teams should work in tandem with medical professionals to assess the urgency of any likely court application, even if all evidence is not yet gathered. It is worth noting, however, that these difficulties are compounded and only likely to increase with cuts to local authorities and health boards and with social workers and in house legal staff haemorrhaging across the board – whilst it is absolutely right for the Court of Protection to find that these delays and staffing concerns do not excuse the delay to P, they do go some way to explaining how these cases continue to return to the Court.  Section 4B of the Mental Capacity Act 2005 offers specific guidelines regarding the deprivation of liberty for life-sustaining treatment or “vital acts” necessary to prevent serious deterioration. Under section 4B, steps that might restrict a patient’s liberty can be authorised if four key conditions are met: the purpose of treatment, the necessity of the steps, a reasonable belief that the patient lacks capacity, and either an ongoing court decision or an emergency situation.  In this judgment, Victoria Butler-Cole KC discussed the practical application of section 4B in circumstances like NN’s, where the risk of future deprivation of liberty might be raised without certainty that such restrictive measures would be required. The judge emphasised that, where a patient is expressing a consistent wish to proceed with a procedure, courts should consider “how likely it is that those measures will be needed.” Butler-Cole KC observed that this may be particularly relevant where the patient does not display any specific indicators of resisting treatment, such as persecutory delusions or ingrained fears, as in NN’s case.  This approach reflects that taken in Shrewsbury and Telford Hospital NHS Trust v T & Anor [2023] EWCOP 20, where Lieven J noted the risk of medical decisions being unnecessarily “turned into legal ones.” Lieven J held that clinicians could, in emergency situations, rely on the doctrine of necessity rather than anticipatory declarations. This doctrine, as well as section 4B’s authorisation of emergency deprivations of liberty, underscores that judicial intervention should not be the default in urgent medical matters. The court in NN’s case echoed this view, stressing that clinicians and legal professionals must assess whether a Court of Protection application is warranted based on a realistic rather than theoretical likelihood of non-compliance.  Conclusion  Recurring systemic challenges, notably the strains on local authorities, health boards, and hospitals, where teams are stretched and resources are limited, are once again a feature being hinted at in judgments. The issues around delayed applications often stem not only from individual oversights but from deeper, structural limitations affecting public bodies. With significant funding cuts across health and social care services, these institutions face ongoing staff shortages and difficulty in retaining both social workers and in-house legal professionals. This lack of manpower frequently impedes swift decision-making and complicates already nuanced legal processes, increasing the likelihood of delays even where urgent intervention is required.  For clinicians and staff in mental health facilities, a further issue is the challenge of managing cases under both the MHA and the MCA, especially with detained patients. While legal principles for those detained under section often support treatment decisions without the need for court intervention, staff may be less familiar with the MCA’s application and its thresholds for requiring judicial oversight. Cases involving detained patients, where complex or invasive treatments are concerned, can often blur the line.  Public health staff and professionals are understandably cautious, concerned about potential legal repercussions. This hesitation, coupled with pressures from under-resourced departments, frequently results in delayed applications where court involvement may either be too late to prevent patient distress, or potentially unnecessary altogether. The judgment in NN’s case is a reminder that while the Court of Protection offers critical oversight, its resources should be invoked judiciously, with applications being made at the earliest indication of need and only when necessary.  Of course, on any interpretation, there is a risk of either overburdening the system with unnecessary applications, or worse so, professionals deciding that cases genuinely requiring an application as not requiring this. Still in its infancy as a jurisdiction, the Court of Protection has brought to light the need for clinicians to be lawyers and for lawyers to be clinicians, or better, that in such cases, open and multi-disciplinary approaches are taken as a standard course.

Anna Datta chairs AvMA’s Court of Protection conference

Anna Datta chaired yesterday's <a href="https://www.avma.org.uk/events/court-of-protection-conference-hilton-leeds-city-hotel/" target="_blank" rel="noreferrer noopener">AvMA Court of Protection conference</a> in Leeds.  The conference examined the current state of litigation and the challenges and responsibilities facing practitioners who work in this area.  Anna also spoke at the event, covering Fluctuating Capacity and Anticipatory Orders / Declarations.

Simon Wilkinson appears in two cases regarding vulnerable adults in the High Court and Court of Protection involving the use of the inherent jurisdiction and the appointment of a Health and Welfare Deputy

In Wakefield Metropolitan District Council v FH & Anor [2024] EWHC 830 (Fam) Simon represented the Health Trust in proceedings before Cobb J (as he was) in proceedings involving the inherent jurisdiction being invoked for protective orders for a vulnerable adult. The judgment summarises the key legal principles to be applied and gives a further example of when such orders will be made.  The judgment can be found here: <a href="https://caselaw.nationalarchives.gov.uk/ewhc/fam/2024/830?query=FH">https://caselaw.nationalarchives.gov.uk/ewhc/fam/2024/830?query=FH</a>  In AB v CD (By The Official Solicitor) & Anor [2024] EWCOP 32 Simon represented the local authority in linked proceedings in the Court of Protection. There were two applications for (1) an annual renewal of CD’s deprivation of liberty; and (2) a health and welfare application by CD’s mother. As part of his analysis of the orders which were in CD’s best interests HHJ Baddeley considered whether to appoint a deputy for CD’s health and welfare (the case advanced by the local authority). He considered the wealth of evidence including the clear recommendation of Christopher Wall (independent social worker) and concluded that this was “one of those rare cases in which it is in [P]’s best interests for a deputy to be appointed”.  The judgment can be found here: <a href="https://caselaw.nationalarchives.gov.uk/ewcop/2024/32">https://caselaw.nationalarchives.gov.uk/ewcop/2024/32</a>  Simon is an experienced Family law and Court of Protection barrister, recommended in both the Legal 500 and in Chambers & Partners over many years. He has a particular interest in cases involving a crossover between the jurisdictions.

Fluctuating Capacity: the approach of the Court of Protection

Tom Barclay-Semple appears in the May 2024 edition of the Family Law Journal. Following on from his presentation at the AvMA Court of Protection Conference 2023, Tom’s article details the Court of Protection’s approach to the issue of fluctuating capacity and what orders should be sought in those circumstances.  Practitioners can access the article with a Lexis+ UK subscription <a href="https://plus.lexis.com/uk/document/?pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials-uk%2Furn:contentItem:6C69-G5W3-RTV3-H45T-00000-00&tocnodeid=TAABAABAAEAAF&isviewwholeof=true&fontType=verdana&fontSize=Small&doccollection=analytical-materials-uk&tocid=urn:contentItem:5R73-NM51-FM2B-Y000-00000-00&docProviderId=hg4k&pct=urn:pct:241&hlct=urn:hlct:50&pageNumber=0&new-toc=1&docLni=6C69-G5W3-RTV3-H45T-00000-00&crid=f4fac8c1-31e2-4b61-87c3-bf0384652544" target="_blank" rel="noreferrer noopener">here</a>.

Conflict and “The Tendency To Be Swayed By Human Nature Rather Than Duty”

Irwin Mitchell Trust Corporation v PW (By Her Litigation Friend The Official Solicitor) and The Public Guardian [2024] EWOP 16  Marisa Lloyd and Lucy Evanson summarise and comment on the judgment on Irwin Mitchell Trust Corporation v PW (By Her Litigation Friend The Official Solicitor) and The Public Guardian [2024] EWOP 16 in which Marisa represented the Public Guardian  Full Judgment here - <a href="https://www.bailii.org/ew/cases/EWCOP/2024/16.html" target="_blank" rel="noreferrer noopener">https://www.bailii.org/ew/cases/EWCOP/2024/16.html</a>  The court considered self-dealing and conflict in circumstances where Irwin Mitchell Trust Corporation (‘IMTC’) acting as deputy for PW, appointed Irwin Mitchell Asset Management (‘IMAM’) to manage the investment of PW’s funds.    Factual background  PW suffered global cognitive impairment which resulted in a loss of capacity. After a successful claim against the treating healthcare trust, she received significant damages. IMTC was appointed as her property and affairs deputy and subsequently held a ‘beauty parade’ after which the deputy appointed IMAM as investment manager for PW.  In 2019, IMTC made an application to the Court of Protection for authority to execute a statutory will for PW. Concerns were raised by the Official Solicitor (‘OS’) about the appointment of IMAM as investment manager. IMTC was directed to make an application to seek retrospective authority to instruct IMAM. The Public Guardian was joined as a party.  Legal background  Section 19(6) of the Mental Capacity Act 2005 (‘the MCA’) provides that, ‘A deputy is to be treated as P’s agent in relation to anything done or decided by him within the scope of his appointment’. HHJ Hilder noted that “the relationship between a deputy and the person for whom the deputy is appointed is a fiduciary one”.  The basic proposition about the position of a fiduciary in a position of conflict was set out by Lord Herschell in the House of Lords decision of Bray v Ford [1896] AC 44 at 51-52, ‘It is an inflexible rule of a Court of equity that a person in a fiduciary position… is not, unless otherwise expressly provided, entitled to make a profit; he is not allowed to put himself in a position where his interest and duty conflict. It does not appear to me that this rule is, as has been said, founded upon principles of morality. I regard it rather as based on the consideration that, human nature being what it is, there is danger, in such circumstances, of the person holding a fiduciary position being swayed by interest rather than by duty, and thus prejudicing those whom he was bound to protect.’  The general principle was restated in Boardman v Phipps [1967] 2 AC 46 which also referred to Aberdeen Railway v Blaikie (1854) UKHL 1 Macq. 461 at 136 per Lord Cranworth LC who said  ‘and it is a rule of universal application, that no one, having such duties to discharge, shall be allowed to enter into engagements in which he has, or can have, a personal interest conflicting, or which possibly may conflict with the interests of those whom he is bound to protect.’  HHJ Hilder considered the law of agency stating: ‘Conversely, the law of agency generally provides that an act of the agent may rank as the act of the principal if the principal ratifies it … Where the principal lacks capacity to make decisions about their property and affairs, only the Court of Protection may grant such ratification. Its jurisdiction for doing so … is found in the conjunction of sections 15(c) and 19(4) of the Mental Capacity Act 2005.’  The Question  There were several questions agreed between the parties but the predominant question for HHJ Hilder to determine was whether the rule relating to conflict of interest was applicable to the appointment of IMAM by IMTC.  Decision  There is no English authority that directly deals with the question of whether the engagement by a fiduciary of a related investment company presents ‘a real possibility of conflict of interest.’ IMTC accepted that its engagement of IMAM gave rise to the ‘theoretical potential’ for a conflict of interest, but contended that there was “no real, sensible possibility” of conflict because it had adopted procedures by holding a beauty parade etc. which eliminated that potential. Counsel for the OS and PG disagreed contending that there was an actual conflict that was not mitigated by the processes followed by IMTC.  Having reviewed the evidence, HHJ Hilder held that :  61. The Court of Protection is no stranger to conflicts of interest…  62. The conflict of interest in question in this matter comes down to IMTC being financially better off if IMAM is appointed. IMTC accepts this as a “theoretical potential”. IMTC’s argument is that such potential is extinguished to the point of no “real sensible possibility” because of procedures it has adopted. Yet nowhere in the development of those processes or in these proceedings has IMTC ever denied either that the decision to appoint IMAM is made by IMTC in its fiduciary role… or that, even with full implementation of those processes, IMTC is better off if IMAM is appointed. At a most basic level, those two concessions amount to recognition of the existence of a conflict of interest: one plus one makes two.  63. The processes which IMTC has adopted when considering the appointment of IMAM do not target the substance of the self-dealing rule: that is, they do not remove the financial gain to IMTC. Such processes could have been adopted, for example by agreeing to waive any fee to IMAM where the instruction comes from IMTC as deputy. Then there would be no financial advantage to IMTC in the instruction of IMAM, no interest to be in conflict with the interests of the person for whom IMTC acts. Of course, I recognise that the Irwin Mitchell group would be likely to reject this approach as lacking commercial sense but that merely reinforces the existence of IMTC’s interest in the appointment of IMAM.  After further discussion of the processes adopted by IMTC, and the involvement of a family member in a beauty parade in ratifying or reducing the ‘theoretical potential’ of conflict of interest, HHJ Hilder concluded that there was a ‘very clear, not remotely fanciful, actual conflict of interest in IMTC appointing IMAM to manage PW’s funds,’ [67] This breached the self-dealing rule. She concluded that  ‘The processes adopted by IMTC do not and could not extinguish that conflict. In my view, that these proceedings have been necessary at all is a paradigm example of Lord Herschell’s wise recognition of the tendency of human nature to be swayed by interest rather than duty.” [93]  Commentary  The judgment confirms that there is a conflict of interest in a trust corporation instructing a connected company to act as an investment manager. The issue of conflict cannot be mitigated by conducting a beauty parade which includes the connected company. Further, the appointment cannot be ratified by a family member.  Ratification must be carried out by the Court.  The Public Guardian has already changed her guidance in the wake of Re ACC [2020] EWCOP. This reflects the view of the PG that, if financial advice is provided by a member of the deputy’s firm, potential conflicts of interest must be considered in the context of adhering to fiduciary duties,  and where the deputies own interest and the interest of P are linked there must be an application to court for authorisation to instruct your own firm.  There was insufficient evidence before the court to determine whether the appointment of IMAM was in PW’s best interests and should be ratified or whether it should be set aside. This will need to be determined in the future.  However, there are many other cases where IMTC and other trust corporations have instructed connected companies. These cases will need to be reviewed and consideration given to the way forward. Given the need for court ratification of existing cases and prospective approval in respect of future new instructions, it may be viewed as highly unlikely that the ongoing instruction of connected companies can be justified as being in P’s best interests. In my view, it follows that  in the absence of a successful appeal, this judgment is likely to signify the end of instructions of an asset manager from connected companies to the deputy.  Further, the judgment may also be viewed as relevant to the question of whether professional pension scheme trustees associated with firms providing other professional services can properly appoint their own firms to provide services.

TA v the Public Guardian and duties of a Certificate Provider

Introduction  The Judgment can be found here <a href="https://www.bailii.org/ew/cases/EWCOP/2023/63.html">TA v the Public Guardian [2023] EWCOP 63 (07 December 2023) (bailii.org)</a>.  The case involved an appeal to Mrs Justice Lieven by P’s potential attorney (‘the Appellant’) from a decision of HHJ McCabe sitting in the Court of Protection. The Judgement is short, and therefore probably worth reading, particularly if you want to be refreshed of all the relevant statutory provisions which I have not set out in this note.  Facts  In brief, The case arose from a challenge by the Office of the Public Guardian (‘OPG’) to the validity of Lasting Powers of Attorney instruments for both Property and Financial Affairs and Health and Welfare (‘the LPA’s’), on the basis that they did not comply with paragraph 2(1)(e) Schedule 1 of the Mental Capacity Act (‘the 2005 Act’).  The Application originally included non-compliance on two grounds. However, the only ground pursued at the first hearing was that the Certificate Provider (‘CP’) ‘failed to make the requisite checks of understanding with P prior to certification’.  In the 2005 Act, Schedule 1 2(1) provides that : - ‘The instrument must include –  (e) a certificate by a person of a prescribed description that, in his opinion, at the time when the donor executes the instrument –  <ul> <li>The donor understands the purpose of the instrument and the scope of the authority conferred under it,</li>  <li>No fraud or undue pressure is being used to induce the donor to create a lasting power of attorney, and</li>  <li>There is nothing else which would prevent a lasting power of attorney from being created by the instrument.’</li> </ul>  The PG asked the court at first instance to determine whether the CP had failed to fulfil the requisite checks of understanding (i.e. those set out in the previous paragraph) with the donor prior to the execution of the LPAs.   The attorney argued that there was no requirement for the CP to carry out various checks of the donors understanding, and that how the CP satisfied themselves of matters relating to the donor prior to signing the LPAs was a matter for them. Further, that neither the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (‘ the 2007 Regulations’), or the 2005 Act, prescribed particular steps that the CP would have to take to ascertain the donors understanding.  HHJ McCabe disagreed and held that she was entitled to look for evidence from the CP that the requirements of Schedule 2 had been met. In this case, the CP had simply asked the donor whether she was happy about the LPAs, and the donor confirmed she was. The Judge held it was difficult to understand (from this information), how the CP had satisfied herself that the donor understood the scope of her authority; that there was no undue pressure or inducement; and there was nothing else to prevent the LPA being created. The LPAs were found to be invalid.  The Appeal  The appeal was on the basis that :-  The statutory scheme sets out in clear terms what is required in order for an LPA to be valid, and the only requirement in para 2(1)(e) was for the provision of a certificate. There was no requirement for the CP to take any particular steps prior to signing the certificate, or for the court to ensure that the requisite opinion is formed.  HHJ McCabe therefore wrongly concluded that “this opinion is one of the requirements of the creation of an LPA …” when it is wrong and there is no requirement for the opinion.  Finally, that the Judge wrongly introduced the concept that the opinion must be valid and imposed obligations on the CP.  It was argued by the Appellant that the Judge’s approach undermined the scheme of the MCA; that there was a presumption of capacity; and that the Judge’s approach was that even though the donor had capacity, the LPA was invalid because the certificate provider failed to undertake sufficient checks.  On behalf of the PG, I argued that it was clear that para 2(1) (e) required the CP to have formed the requisite opinion.  This opinion must be based on something which allowed the opinion to be properly formed. The provision of a certificate is fundamental to the formal validity of the LPA. It is not simply a signature verifying capacity, but it is a signature which also goes to issues such as understanding who the attorney is, and undue influence etc.  In order to establish the validity of what the signature is verifying, the court must be able to look behind the signature and the opinion which was formed prior to signing.  Whilst the Appellant appeared to be suggesting that as long as the signature was present, the formalities were met, I submitted that the appellants submission taken at face value could result in a situation where there was no enquiry as to the basis on which the CP had formed the requisite opinion. This could result in an LPA being taken as valid when the CP had not spoken to the donor, or ascertained anything about the wishes, intentions or understanding of the donor. Such a situation would be absurd and would undermine the protection intended in Schedule 1.  Mrs Justice Lieven considered the statutory language, the overall statutory scheme and the purpose at which it was aimed. She held that the court was entitled to check that the requisite opinion had been formed by the CP and that the Judges approach at first instance was correct. The appeal was dismissed.

Parklane Plowden Sponsor the AvMA Court of Protection Conference

We are pleased to announce we will be sponsoring & attending the AvMA Court of Protection Conference on Monday 09 November 2023. The conference will be held at the Hilton Hotel, Leeds City.  Parklane Plowden's <a href="https://www.parklaneplowden.co.uk/our-barristers/anna-datta/">Anna Datta</a> will be chairing the event with <a href="https://www.parklaneplowden.co.uk/our-barristers/tom-barclay-semple/">Tom Barclay-Semple</a> also speaking.  The programme for the event can be found <a href="https://www.avma.org.uk/events/court-of-protection-conference-9-november-2023-hilton-leeds-city-hotel/">here</a>.

When a Fatal Accident Act dependant is already a protected party

James Murphy has obtained approval of an agreed settlement sum in the High Court of Justice, Leeds District Registry, relating to an adult protected party who brought a claim as a dependant of her deceased father pursuant to the Fatal Accident Act 1976.  The Court also approved payment of the sum of damages directly into a Disabled Persons Trust (DPT), rather than the typical order of payment to a Deputy / Court of Protection which is the starting point for an incapacitated dependant. The consequence of payment to a Deputy/ Court of Protection, this being an FAA claim and not a personal injury action, was the protected party was liable to lose her eligibility for means tested statutory funding, including social care provided via her local authority direct payments package (which had been in place since before her father’s death), plus any current/future means tested benefits (not relevant at present, but may be in the future).  A DPT was established with professional solicitor trustees, who otherwise would have been engaged under the Deputyship, with the protected party as the principal beneficiary. This proposal also had the support of the Official Solicitor.  Though the Court of Protection could order that the award be paid into a DPT rather than a Deputyship this ran the risk of being considered a decision by the protected party herself as the Court of Protection makes substituted decisions, and as such, could constitute a deprivation of capital such that the award can may be regarded as notional capital.  This is a novel approach to the difficulties surrounding existing protected parties as dependants in FAA claims. The Court agreed it was in the dependant’s best interests for the sum to be paid into the DPT which had already been established for this purpose with her litigation friend as settlor when considering the principles of s.18 MCA 2005. The court was satisfied there was sufficient safeguards for the protected party within this Trust and it would enable the dependant to benefit from her award of substantial damages without risking her eligibility for statutory funding.

Cookie	Duration	Description
cookielawinfo-checkbox-analytics	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Analytics".
cookielawinfo-checkbox-functional	11 months	The cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional".
cookielawinfo-checkbox-necessary	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookies is used to store the user consent for the cookies in the category "Necessary".
cookielawinfo-checkbox-others	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Other.
cookielawinfo-checkbox-performance	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Performance".
viewed_cookie_policy	11 months	The cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. It does not store any personal data.

Your Shortlist (0)

Timely Intervention in the Court of Protection: Lessons from Cardiff and Vale University Health Board v NN [2024] EWCOP 61

Anna Datta chairs AvMA’s Court of Protection conference

Simon Wilkinson appears in two cases regarding vulnerable adults in the High Court and Court of Protection involving the use of the inherent jurisdiction and the appointment of a Health and Welfare Deputy

Fluctuating Capacity: the approach of the Court of Protection

Conflict and “The Tendency To Be Swayed By Human Nature Rather Than Duty”

TA v the Public Guardian and duties of a Certificate Provider

Parklane Plowden Sponsor the AvMA Court of Protection Conference

When a Fatal Accident Act dependant is already a protected party

Hussain. Again. Taxi Credit Hire in 2024.

Justice Is Seen to be Done – High Court Considers Fairness of Counsel’s Interactions with Opposition

Harrogate & District Law Society Family Finance Talk

Compassion vs Culpability: Morris v Morris & Ors [2024] EWHC 2554 (Ch)

Your Shortlist (0)

Our Expertise

Timely Intervention in the Court of Protection: Lessons from Cardiff and Vale University Health Board v NN [2024] EWCOP 61

Anna Datta chairs AvMA’s Court of Protection conference

Simon Wilkinson appears in two cases regarding vulnerable adults in the High Court and Court of Protection involving the use of the inherent jurisdiction and the appointment of a Health and Welfare Deputy

Fluctuating Capacity: the approach of the Court of Protection

Conflict and “The Tendency To Be Swayed By Human Nature Rather Than Duty”

TA v the Public Guardian and duties of a Certificate Provider

Parklane Plowden Sponsor the AvMA Court of Protection Conference

When a Fatal Accident Act dependant is already a protected party

Latest News

Hussain. Again. Taxi Credit Hire in 2024.

Justice Is Seen to be Done – High Court Considers Fairness of Counsel’s Interactions with Opposition

Harrogate & District Law Society Family Finance Talk

Compassion vs Culpability: Morris v Morris & Ors [2024] EWHC 2554 (Ch)