Court of Protection: lay Deputy facing custodial sentence

A recent case highlights the risk of lay Deputies managing substantial compensation awards without legal advice. It also endorses the appointment of a professional Deputy to ensure vulnerable individuals are protected.

Samantha Svedensen was awarded £2.6 million as a result of medical negligence at birth. She was starved of oxygen leading to irreversible brain damage and cerebral palsy. The hospital accepted liability and Samantha was awarded compensation to cover 24 hour care for the rest of her life.

The Court of Protection appointed Samantha’s mother, Cathy Watson, as her Deputy.

Rather than using the award for her daughter’s care needs Cathy Watson, and her ex-husband Robert Hills, took in the region of £500,000 from Samantha’s compensation fund over an 8 year period. They used the money to fund personal expenditure including cosmetic surgery, jewellery, property and luxury cars.

Throughout her recent trial Cathy Watson claimed that the Court of Protection never briefed her on how to carry out her role as Deputy, and she claimed to be unaware of what was expected of her in this role. Cathy Watson was convicted of three offences of theft and of transferring criminal property.  She awaits sentence but has been warned she will very likely receive a significant custodial sentence.

The loss of such a significant sum has left Samantha without the requisite funds to ensure she is provided with care for the remainder of her life.

It is common practice to appoint a professional Deputy as a means of protecting vulnerable individuals who lack capacity to manage their own affairs. This is particularly important when substantial compensation is awarded for the remainder of someone’s life. If lay Deputies act for vulnerable individuals it is essential that they take legal advice to ensure they comply with their duties and responsibilities.

If you would like more information about appointing a professional Deputy or would like legal advice on your duties and responsibilities as a Deputy please contact a member of our Private Client Team on 0207 2427000.

Court of Protection ruling could affect Advance Directives

In the highly publicised case of A Local Authority v E [2012] EWHC 1639 (COP), the Court of Protection was asked to determine whether a severely anorexic woman should be given potentially lifesaving treatment against her wishes as well as those of her family.

The woman in question, identified only as E, suffers from “a triad of anorexia, alcoholism and personality disorder” and at the time the case was brought, she was following a palliative care pathway that had been agreed by her family and her doctors.  Significantly, E had made an ‘advance directive’ (more commonly known as a Living Will) in October 2011 stating that if she were close to death she would accept pain relief and palliative care but that she did not want tube feeding or life support.  At the time of making this decision, E and her mother were led to believe that E had capacity although no formal capacity assessment was undertaken.

In considering this complex and, at times, harrowing case, Peter Jackson J considered three key issues:

1. Did E have the mental capacity to make decisions about her treatment?

2. Had E had the mental capacity when she had made her advance directive in October of last year?

3. Was it in E’s best interests to receive life-sustaining treatment which in this instance would involve forcible feeding?

In his carefully considered judgment, Peter Jackson J found that E currently did not have the capacity to make any decisions regarding her treatment and, more importantly, he found that she had lacked the capacity to make any decisions at the time she had made her advance directive. In reaching his conclusion that it was in E’s best interests to receive life sustaining treatment, Peter Jackson J stated: “The competing factors are, in my judgment, almost exactly in equilibrium, but having considered them as carefully as I am able, I find that the balance tips slowly but unmistakably in the direction of life-preserving treatment.  In the end, the presumption in favour of the preservation of life is not displaced.”

What is clear from this judgment, is that a full, reasoned and contemporaneous assessment of a person’s mental capacity ought to be considered when making an advance directive, otherwise the Courts could set the advance directive aside at a later stage if questions about a person’s capacity are raised.

If you would like advice on advance directives or capacity issues more generally, please do not hesitate to contact a member of our Private Client Team who will be happy to help you.

 

Make a Lasting Power of Attorney to keep out of the Court of Protection

The Court of Protection is under fire for being slow and expensive as well as for its insensitive handling of the affairs of those who are not able to manage their own affairs. Make a Will and a Lasting Power of Attorney for your own sake and to spare your relatives from having to deal with the Court of Protection.

If the current furore about the competence of the Court of Protection serves any purpose it will be to emphasise a point which this firm has made over and over again – that people need to make a Will and to make a Lasting Power of Attorney. The Court of Protection exists to handle the affairs of those who do not have the mental capacity to do so for themselves and who have made no formal arrangements for a friend, relative or trusted adviser to do it for them. For the most part, you only become involved with the Court of Protection if you do not have both of these documents. The remedy is obvious. Continue reading “Make a Lasting Power of Attorney to keep out of the Court of Protection” »

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