Case studies

Protecting Vulnerable People in Court of Protection Cases

By Estatesearch on May 28th, 2024

By Paige Gouldthorpe, Deputy Head & Court of Protection Specialist, Wills, Trusts & Probate Department and Head of Lowestoft, Fosters Solicitors.

As a law firm, primarily we are here to help and so we are all genuinely approachable and aim to take the pain away from difficult situations.

Under the Mental Capacity Act 2005, The Court of Protection acts in the best interests of individuals to safeguard those with mental incapacity.  This may relate to financial or welfare decisions. 

The first step is to establish the degree of capacity of a vulnerable client with an assessment, ideally from a social worker.  However, this can present challenges as social workers are often under resourced and may not have the bandwidth to act quickly.  Sometimes the allocated social worker is unable to undertake a mental capacity assessment, as they are not in possession of the necessary accreditations.  Therefore, an independent qualified person will need to be hired to undertake an assessment, which typically comes with a fee. Understandably, this can cause difficulties if P has limited funds. 

The golden rule is that if there is any doubt, arrange for a mental capacity assessment (also known as a COP3).

A mental capacity assessment will enable The Court of Protection to understand the specific needs of the individual and safeguard them by awarding a Deputyship Order. 

Where I have a Court of Protection case, and we have been appointed with a deputyship order in relation to P’s property and finance, the next step is to gain a full picture of the vulnerable individual’s financial position so the necessary care provision can be made.  We try to achieve this without worrying them. I regularly work with clients who have complex mental health diagnoses, such as bipolar disorder, Schizophrenia and anxiety disorders and so being able to assess and administer the estate without hassling or triggering them means we can carry out our work without having a negative impact on their wellbeing. Being able to adapt to an individual’s personal circumstances is extremely important when caring for vulnerable people.

Ordinarily, it would be necessary to write to multiple financial organisations requesting information but this is time consuming and can often be unrewarding.  However, we have a close working relationship with Estatesearch who offer a wide range of services including completing a Financial Profile Search.  This service is run by a dedicated team who engage with financial institutions on our behalf, they then track the responses and update us accordingly.  The report streamlines the process and directs us to the appropriate institutions, so we can then obtain more detailed information and establish the full extent of the estate, which can then be used to pay for the individual’s care needs.

We are obligated to report subsequent actions to the Office of the Public Gurdian.  Part of this includes demonstrating how we’ve engaged the individual in decisions.  I am passionate about the importance of respecting each individual’s wishes and so always aim to work with them as closely as possible as I believe this can be forgotten in incapacity cases.  Often capacity fluctuates and it can be possible to engage positively with clients in conversation at different times and this should be encouraged. 

Understanding different conditions to gaining trust with the client and the family is paramount. It is widely known that colours can be memory triggering for individuals living with Dementia. Therefore, whenever I visit a client I always wear a pink, fuchsia coat and sparkly shoes.  Carers say even clients with little or no retention remember me with a smile and as the nice lady in the bright coat.  Trying to ensure that you are maintaining consistency is important, perhaps wearing a flamboyant colour, ensuring that every time you call them it is always on a Thursday afternoon, etc. Consistency is key and creating a routine with your client can build a foundation of trust.

Applying for Court of Protection orders can be a lengthy process.  In Deputyship cases where a minimum of three related people need to respond to the court notice, one way I help speed up the process is to contact each family member and ensure they respond to the Court letter as a matter of urgency, rather than letting the statutory period lapse.  This helps move ahead of other applications.

 The Court of Protection have a designated team of judges and an emergency contact number for any urgent cases which require a swift turnaround, such as requiring authority to consent to urgent life sustaining operations. The Court of Protection also have an out of hours Security Office at the Royal Courts of Justice, which deal with urgent applications where P is at immediate risk, suffering serious loss or harm and require urgent medical treatment.

Working with vulnerable individuals is a calling.  I have known some people who have been close to ending their own lives or were shattered from the system.  My role is to bring my legal expertise to help create the best outcomes for these vulnerable individuals.  It can be tough, but it is rewarding to see the tangible impact you can make in people’s lives on a daily basis. This is my main motivator and continues to inspire me every day.

Further information about Fosters Solicitors.

Originally published in the Norfolk Law Magazine 55.

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