In this episode, Martin Terrell discusses the Court of Protection.
Martin is a well-known and acknowledged expert in Court of Protection matters. He is recognised as a leading individual in this field by both legal directories, The Legal 500 and Chambers and Partners. Martin has lectured and written extensively on Court of Protection and elderly client matters.
In this episode, Martin gives his insight into what it’s really like working with the Court of Protection. He also discusses the highs and lows of working with individuals who have lost mental capacity and how he deals with difficult relatives.
I’m Paul Harvey, and welcome to the Warners Solicitors series of podcasts. I’m delighted to introduce Martin Terrell from Warners for this podcast, and we’ll be discussing the Court of Protection. Now before we go into the topic, Martin, welcome, please describe what you do at Warners.
I’ve been a solicitor for nearly 30 years now, and for most of that time I have been dealing with an ever-increasing number of older clients who find themselves under the jurisdiction of the Court of Protection. It started off as a side-line of my work but has become a mainstream part of my work.
Martin let’s describe what is the Court of Protection?
Its history goes back to the Middle Ages. It is the judicial body that has jurisdiction over the affairs of people who lack capacity to make their own decisions, including financial decisions and decisions over their body and welfare.
What sort of decisions can the Court of Protection make in that case?
It has an incredibly wide jurisdiction to make all sorts of decisions over money, property. It can make wills for people. It can make settlements and gifts. Generally, it will appoint a deputy, so that’s an individual who has authority to make decisions on behalf of the person that lacks capacity. The Court can also make welfare decisions, so that includes anything from deciding where someone should live to what sort of medical treatment they should have. In extreme cases, the Court can authorise the withholding of life-sustaining treatment. Often, you see the quite high profile emotive cases where life cannot be sustained.
What does a deputy actually do, and how difficult is it to become a deputy?
In most cases, the Court can’t make every decision for every person who can’t make their own decisions, so it will delegate its powers to an individual who is a deputy to make decisions on behalf of the incapacitated person. Often that is a close family member, a relative, and often it’s a solicitor.
It’s quite common for solicitors to act as deputies. I act as a deputy for about 80 individuals, so it’s quite a large part of our practice. There are a lot of cases where there are no family members who can act, and in a lot of cases there were family members, but for various reasons they’ve been removed because of incompetence, negligence or even fraud.
The Court will appoint that individual to act as a deputy. Usually, there’s quite a long process to get to that point. It’s one of those Courts where you can always do it yourself, but it’s quite a long-winded process involving a lot of paperwork because the Court doesn’t really know anything about the individual. At the start of the matter, you are dealing with blank canvas expecting the Court to make pretty far-reaching decisions, so you need to produce a lot of evidence about that person, about their life, their property, the decisions that you want the Court to make, or the deputy will need to make, and above all medical evidence to satisfy the medical capacity threshold to show that the person lacks capacity to make the decisions in question.
So, what could be the major challenges that could face you as a deputy?
The problem is that every individual is different, and you have to work with the Mental Capacity Act, which is meant to be and it is an empowering piece of legislation. It starts with the presumption of capacity and allows or encourages people to make the decisions that they are capable of making. When you start with an individual you’ve never met before, you need to know what decisions they can make, and you should encourage them to make those decisions. Then you want the Court to authorise you to make the decisions they can’t make. Often this is a grey area between decisions people can make and decisions they can’t make. So, you’ve got to know the individual, you’ve got to know what they can do and what they can’t do and try to find the right approach between those two perspectives. The hardest part is knowing the client, knowing the individual and what they can do what they can’t do.
As far as possible, you work with the person, and you want to support them. You want to work out what sort of life they want to lead where they can live. The challenge is trying to meet the expectations with the realities. Some people want to live very independent lives and are very stubborn about it. Some people lack insight into their situation, so they are not realistic about what they need. They often lack the resources to lead the life they want to lead. The other extreme where people have the resources but don’t want to use them because they think they are absolutely fine and they don’t need help, but actually, if they applied their resources wisely, they could have a lot of help.
How many years have you been working with the Court of Protection Martin?
I’ve been doing this for about 25 years.
What do you like most about working with the Court of Protection?
It’s very satisfying to be able to make a difference to people’s lives and to support them when they are not able to support themselves. You can step in and help that individual make the most of their lives whatever state of life they have available to them, and that’s very satisfying. It’s also very satisfying when you have a slightly chaotic scene in front of you of someone who has been neglecting themselves, their property is falling apart, and it’s all a bit of a mess, and they have not been managing. As a deputy, you can step in and use your authority and your jurisdiction to put their affairs back in order and sort out the paperwork, the finances, get the house repaired, get the equipment they need, make sure they have the care and support they need. Then you go back six months later, and you see someone living in their own home, enjoying the view out of their window into the garden that they’ve love so much, and that’s really satisfying.
I can imagine, and I’m going to ask the counter-question, what do you most dislike about working with the Court of Protection?
Working with the Court is quite frustrating. It’s a fairly bureaucratic process that imposes on anyone who goes near it, and that’s understandable because it needs evidence about what people can or can’t do. It is making very important decisions about their lives. It’s a sort of system that assumes that these important decisions will be taken by judges, so there’s a limit on the resources, and the Court can’t manage with the volume of work it has, especially where decisions have to be taken seriously by judges, and there aren’t enough judges to do the work, so there are delays throughout the system.
At the moment, it is taking over six months on average to get a deputy appointed from start to finish which is very frustrating. So, you’ve got an individual you are dealing with who needs a deputy because their affairs are in disorder, the house needs to be sold, they need to go in to care, they need money to pay for care. It’s a distress purchase at the time you start. The clock is ticking already, and then to wait another six months to get your deputy appointed is quite a frustrating process.
The Court makes it difficult for you, and there’s a lot of paperwork and bureaucracy that goes with it. You have to endure that as part of the job. So the Court checks very carefully that it’s appointing the right person with the right authority, and then once you’ve been appointed, you’ve got the Public Guardian, which is another body that supervises and checks up on deputies. You have to do annual reports and accounts and they get scrutinised again. It’s a lot of paperwork. It’s a pain, but it’s also quite necessary, and then when you’re doing the work as a solicitor, your costs are also scrutinised, so you have the Costs Office to deal with, so there is more paperwork. So, we have a very paper-heavy office that we have to manage, that’s a challenge.
The other challenge is that some of the individuals we deal with are quite difficult. The relatives are also quite difficult. That’s what makes the work interesting and enjoyable as you have the full range of humanity from heroes to villains, from saints to sinners. You get the most wonderful people, devoted carers, people who are a joy to see and then you got the other side where even your own clients you may feel like they’re not nice individuals, but you do your best for them. Some of the relatives and carers that you come across, from the ones who are just difficult to the ones who are very suspicious of anyone else introduced to their lives, down to the down right crooked. We have seen some horrific cases of financial abuse of children taking money from their parents helping themselves to their money. Good neighbours taking control of a vulnerable neighbour next door and literally syphoning off hundreds of thousands of pounds into their own pockets.
Martin, I think you could write a book, couldn’t you?
I have written technical textbooks, but I think I could write a collection of stories.
There’s a human side to this that you could cover in a dramatic way! I guess COVID has also thrown a spanner in the works over the last year in terms of preventing you from really getting on with delving into information at arm’s length and in a virtual platform which must have been very challenging for you?
It’s been very challenging gaining access to individuals because you really want to see people when you’re dealing with a Court of Protection application. The crucial part that I mentioned before is the capacity assessment. You need a doctor or healthcare professional to measure their capacity, and the best way of doing that is to go and meet the person and talk it through with them, but that’s very difficult when access is being so restricted. We have managed to asses via Zoom. It’s not been ideal, but it’s been done, and the Court has been quite good about accepting evidence that’s been obtained in that way, but it’s just not the same as being able to go and just talk to someone face to face and meet them.
Martin, obviously it’s a very involved subject the Court of Protection and lots more that could be discussed but for now what is the best way for people to contact you if they want more information.
The Warners website is the easiest way to get hold of me, and that has all of my contact details and email address as well.