Finding the right balance in the court of protection

Dated:

The court of protection is designed to balance the rights of the family with the needs of the vulnerable. Although this is legally difficult – abuses will always occur – it is currently the best system we have.

Considering how little is known about its work, the court of protection handles many cases concerning the welfare of people who cannot make decisions for themselves.

Although most concern the elderly unable to cope, the court of protection deals with an increasing number of younger people and children who have suffered major brain injury. In these cases a relative, friend or solicitor acts as a deputy.

Welfare cases range from life-saving treatment down to routine medical care, while the court also deals with the making of statutory Wills. Of the 1,500-plus applications the court receives each month, most are comparatively straightforward and pass smoothly through the system.

When it comes to family conflict, however, things can get complicated. Separate representation is likely to be needed by the person whose interests are most important, and costs can soar by many thousands.

Given the unpredictability of family conflict, it is perhaps unsurprising that the court of protection has gained a reputation for secrecy and beaurocracy. However, due to the private and often sensitive nature of cases heard, these are unfair perceptions.

Where cases are of wider public interest, reporting permissions are often granted. And although participants' names might be withheld, the court has allowed the media to reveal personal details if the information is already in the public domain.

As for excessive bureaucracy, this is also misleading. The court will usually allow some leeway to a deputy appointed to make decisions for someone who cannot do so (or 'lacks capacity'), generally allowing them to get on with the job with little intervention.

This approach relies on the abilities and honesty of the deputies. Their yearly reports are monitored by a separate body, the Public Guardian, which acts if a deputy fails to deliver.

The Public Guardian monitors over 20,000 cases (although its powers and resources are limited), investigates deputies and can be contacted by whistleblowers. Any problems can take time to detect and investigate; if deputies fall short, court applications must be made to remove them and appoint new ones.

Financially, the system shows distinct flaws. There are proven cases of payouts to relatives who have used compensation money to fund extravagant lifestyles.

Acknowledging the system's imperfections, our Head of Wills and Probate at Simpson Millar LLP, says it is vital that the court of protection adheres to its central remit. "It's about weighing the consequences of protecting the vulnerable with the rights of families to take on the same responsibility without hindrance."

"If the scales tip slightly too much either way, people who need support the most can be left behind while those in the wrong – the incompetent, or the unprincipled who just take the money – are effectively let off the hook. We all look forward to a system that strikes the right balance."




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