Author: hawamayet

Gifting – OPG updates gift giving guidance

hawamayetLeave a comment

The Office of the Public Guardian (OPG) has issued updated guidance on gift giving, with particular emphasis on loans and circumstances in which Deputies or Attorneys may seek to benefit themselves.

The guidance makes clear that a conflict of interest is likely to arise where an Attorney makes a gift or loan to themselves, or to members of their family, from the donor’s assets.

Further emphasis had been made relation to loans and the position is unequivocal: Attorneys should seek prior authority from the Court of Protection before making any loan to themselves or to their family.

A general authority contained within a Deputyship Order does not extend to the power to make loans. Deputies must not enter such arrangements unless they have obtained specific authority from the Court of Protection.

In respect of gifts, the OPG cautions: “If you do accept a gift for yourself, the Court of Protection can look carefully at whether the [donor] had capacity and may decide you went beyond your authority.”

The guidance further stresses that where a proposed gift does not fall within the statutory exceptions, an application must be made to the Court of Protection for approval.

 

For a refresher of the OPG gifting guidance, please see below.

Before making a decision regarding a gift to be made, 2 key points must be considered by the Deputy:

  1. Does P have capacity to make this decision themselves?
  2. If they lack capacity, is the decision in their best interests?

Best interests entails consideration of:

  • P’s past and present wishes
  • Their beliefs and values
  • Their relationships
  • Their financial security

 

What legally counts as a “Gift”?

  • Cash transfers
  • Cheques
  • Bank transfers
  • Selling property at an undervalue
  • Transferring shares
  • Forgiving a debt
  • Interest-free loans
  • Paying school fees or other costs for someone else
  • Adding someone to a property title
  • Setting up trusts for others
  • If full market value is not received in return, the transaction will usually be treated as a gift.

 

When gifts can be made without Court approval

Three conditions must be satisfied:

1: The gift is on a customary occasion

“Customary” refers to occasions that are culturally or socially normal in the context of the person’s life.

Examples include:

  • Birthdays
  • Christmas, Eid, Diwali, Hanukkah
  • Weddings or civil partnerships
  • Anniversaries
  • New births

 

2: The recipient is connected

The gift must be made to:

  • A family member
  • A friend or other person connected to them
  • A charity they have supported or might reasonably have been expected to support

 

3: The gift is reasonable in value

What is “reasonable” will depend on:

  • The size of the estate
  • P’s anticipated future care costs
  • Life expectancy
  • Income against expenditure
  • Existing financial commitments
  • Previous gifting patterns

 

The de minimis exceptions

The Court of Protection recognises that, in limited circumstances, a gift may technically exceed a Deputy’s authority but only to a minor extent such that a formal application is not required. These are referred to as ‘de minimis exceptions’ and apply only where P’s estate has a value of £325,000 or more.

When determining whether a gift falls within the de minimis exception, the Deputy must consider:

  • P’s life expectancy
  • The affordability of the proposed gift
  • Whether the proposed gift would affect P’s care costs, standard of care or quality of life
  • Whether there is any evidence that P would object to the gift being made on their behalf

The de minimis exception does not apply in the following circumstances, and an application to the Court of Protection will still be required:

  • Loans to the Deputy or members of their family
  • Investments in the Deputy’s business
  • Sales or purchases at an undervalue
  • Transactions giving rise to a conflict of interest between P and the Deputy

 

What Deputies cannot do without Court approval

An application must be made to the Court of Protection where a Deputy proposes to:

  • Make substantial gifts outside normal customary occasions
  • Undertake inheritance tax mitigation through significant lifetime gifting
  • Transfer property to family members
  • Create trusts
  • Use P’s funds to maintain someone other than P
  • Make loans
  • Alter property ownership structures
  • Equalise inheritance between children
  • Continue a historic pattern of high-value gifting

 

For the full guidance please click on the link Giving gifts – GOV.UK

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

 

EG & Anor v P [2024] EWCOP 80 (T3)

hawamayetLeave a comment

In a recent Judgment handed down by Sir Andrew McFarlane, President of the Family Division, the Court of Protection considered an urgent application brought by Deputies acting for P, who sought a payment of £17,000 from his funds to repay a drug debt to an organised crime group.

Case Summary

The Protected Party (P), now in his 20s, suffered a severe brain injury as a toddler in a road traffic accident and was awarded a substantial compensation fund. Despite cognitive impairments, P lives independently and is not subject to any welfare Orders. He has been deemed to have capacity in some matters, including entering a cohabitation agreement (assessed in 2020). However, his property and affairs remain under Deputyship.

Over a year ago, properties associated with P were raided by police. A significant quantity of Class A and B drugs was seized and P was arrested. His Deputies were aware of the arrest but believed the matter was limited to potential criminal proceedings. The situation escalated when P informed his Deputies that he owed £17,000 to a drug gang. He had reportedly agreed to share in the profits of the drugs seized. Fearing for his safety, P requested a payment from his fund to settle the debt.

The Deputies found themselves in a near-impossible position:

  • If P had capacity, they would be obliged to comply with his request, provided the payment fell within his legal entitlements.
  • If P lacked capacity, they could refuse the request, but the matter would then fall to the Court to consider whether it was in his best interests.
  • Either way, making such a payment risked criminal and professional consequences.

The Deputies obtained Counsel’s advice, which confirmed that making the payment would likely breach the Proceeds of Crime Act 2002, particularly under section 328 (entering into or becoming concerned in arrangements facilitating acquisition, retention or control of criminal property). Even if done with the best of intentions, such a payment would be seen as enabling criminal conduct and could expose the Deputies to liability. The advice obtained from Gregory Treverton-Jones KC confirmed that the Deputies would be in breach of the Solicitors Regulation Authority’s Principles and Code of Conduct if they made the payment.

The Court commissioned an updated, decision-specific capacity assessment which was carried out by Dr Geoff Hill, a consultant clinical neuropsychologist. The key findings included:

  • P understood the nature of the decision but he could not weigh the long-term risks or recall and apply key information (e.g. risk of prosecution, long-term financial harm)
  • His decision-making was driven by immediate emotional relief (reducing stress), not reasoned evaluation.

Dr Hill concluded that P lacked capacity to make this particular decision despite functioning well in other areas of life.

 Ruling

Sir Andrew McFarlane concluded that:

  1. P lacks the mental capacity to decide whether to pay the £17,000 drug debt.
  2. The Court cannot authorise a criminal act, even if it may reduce stress or mitigate a personal risk to P.
  3. The Deputies acted appropriately in seeking Court guidance and the Court expressly refused to dismiss the application, instead issuing a formal refusal to sanction the payment.

Importantly, the Court refused to make a best interests decision because of the binding authority in Secretary of State for Justice v A Local Authority & Ors [2021] EWCA Civ 1527, confirming that the Court of Protection cannot authorise illegal conduct under any circumstances.

Summary

The Court refused to sanction the payment requested for the payment to be made to the drug gang, concluding that doing so would amount to facilitating criminal conduct. This Judgment offers important clarity on the limits of Deputies’ powers and reinforces the fundamental legal principle that the Courts cannot condone or enable criminality, even where the individual involved believes it is in their best interests.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

CT v London Borough of Lambeth & North Central London ICB ([2025] EWCOP 6)

hawamayetLeave a comment

In the recent case of CT v London Borough of Lambeth & North Central London ICB ([2025] EWCOP 6), the Court of Protection addressed issues concerning mental capacity assessments, particularly the role of ‘insight’ into one’s mental health conditions.

Background

CT, a man in his 50s, sustained a head injury at age 12, leading to epilepsy and cognitive impairments. Despite being medically fit for discharge from the hospital, he faced potential homelessness due to a lack of suitable placements. On September 5 2024, a Judge concluded that CT lacked the capacity to make decisions regarding his residence and care, resulting in his continued detention in the hospital under a Deprivation of Liberty authorisation. This decision was challenged, leading to the appeal.

Legal Issues

The appeal focused on whether the initial capacity assessment inappropriately conflated CT’s mental impairments with his decision-making abilities. Specifically, it questioned the inclusion of CT’s lack of ‘insight’ into his psychiatric diagnoses as a factor in determining his capacity. The Court examined whether the Statutory criteria under the Mental Capacity Act 2005 were correctly applied, emphasizing that ‘insight’ is a clinical concept separate from the legal assessment of capacity.

Judgment

Mrs. Justice Theis allowed the appeal, finding that the lower Court had set an excessively high standard by requiring CT to have insight into his mental impairments as part of the capacity assessment. The Judgement highlighted that capacity assessments must adhere strictly to the Statutory framework of the Mental Capacity Act, avoiding the conflation of clinical insight with legal capacity.

Implications

This case reinforces the necessity for precise application of the Mental Capacity Act in capacity assessments, ensuring that individuals are not unjustly deprived of their decision-making rights based on their mental impairments. It highlights the importance of distinguishing between clinical insight and legal capacity.

The Judgement also provides a checklist to assist in conducting proper capacity assessments, emphasizing adherence to Statutory criteria without additional considerations of clinical insight.

This ruling serves as a reminder of the legal principles governing capacity assessments and the need for meticulous application to uphold the rights of those with mental impairments.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

MA v A Local Authority & Ors [2024] EWCOP 48 (T2)

hawamayetLeave a comment

This matter concerned a legal Judgment following an appeal by MA, a Protected Party, against decision by District Judge Simpson. The original decision determined that it was in the best interests of MA and her husband, AA, both of whom have Dementia and lack capacity to make decisions about their residence, care, and contact with others, to have no form of contact with each other.

The couple, married for over 60 years, are placed in separate care facilities due to their differing care needs and are deprived of their liberty under the Mental Capacity Act 2005. The appeal was opposed by AA and the public bodies responsible for their care.

The appeal raised eight grounds, focusing on the weight given to the past and present wishes and feelings of MA and AA, their mutual beliefs and values, and the benefits and burdens of potential contact or relocation. The Appellant argued that the Judge failed to adequately consider these factors, particularly the lifelong values and beliefs associated with their marriage. The appeal also challenged the Judge’s analysis under Article 8 of the European Convention on Human Rights, which concerns the right to respect for private and family life.

The Court granted permission to appeal on the first seven grounds, acknowledging arguable issues with the balancing exercise of the Judge’s decision. However, the appeal was ultimately dismissed on all grounds.

The Judgment emphasized that the Trial Judge’s decision was thorough and based on the overwhelming evidence presented, which indicated that contact between MA and AA was not in their best interests due to the distress it caused, the Court found that the decision was proportionate and necessary, with provisions for regular review as the conditions of both parties evolve. The Judgment also addressed procedural aspects, such as the consolidation of separate applications and the refusal of permission to appeal on the eighth ground related to Article 8 rights.

The Court upheld the original decision, affirming that the separation and lack of contact were lawful and in the best interests of both parties, with ongoing reviews to accommodate any changes in their conditions.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

PSG Trust Corporation Limited v CK [2024] EWCOP 14

hawamayetLeave a comment

This case concerned how a Property and Affairs Deputy should approach the issue of whether to inform P of the value of their Civil Litigation settlement in the case in which knowledge of the same may make them vulnerable.

The applicant, PSG Trust Corporation Limited, acts as the Deputy for both CK and NJ and highlighted the predicament which deputies regularly face as there is little guidance regarding informing P of the value of their settlement.  After reviewing what relevant case law there is, Hayden J set out some of the factors to be weighed in making the decision:

‘The ‘matter’ or decision is whether P wishes to request the value of her funds, and the factors relevant to her capacity to make that decision are likely to include her understanding of:

i. The nature of the information in question;
ii. The risks of obtaining it;
iii. The risks of not obtaining it;
iv. The benefits of obtaining it;
v. The benefits of not obtaining it.’

Hayden J then applied the principles to the cases before him. CK was involved in a traffic accident and as a result of her injuries has vulnerabilities. Hayden J concludes CK lacks capacity to take the decision herself but has clearly expressed her wishes that she should know the amount of the settlement, so that she can make a Will amongst other things, and therefore declares that it is in CK’s best interests to be told. NJ has been diagnosed with Cerebral Palsy and other conditions, and there was a history of financial abuse, making NJ vulnerable to exploitation. Accordingly, Hayden J finds NJ lacks capacity and that it would not be in her best interest to be told of the amount of the award.   

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

East Suffolk and North Essex NHS Foundation Trust v DL & Anor [2023] EWCOP 47

hawamayetLeave a comment

This was a Hearing to determine the type of treatment plan which should be put in place to feed and hydrate P.

The Protected Party (P) is in her thirties and is currently detained under section 3 of the Metal Health Act 1983 in hospital. P has a mild learning disability, complex PTSD, a dissociative disorder and an Emotionally Unstable Personality Disorder at a borderline level. She has a history of violence towards herself and others, including those who care about her. Since August 2023, P has been limiting her intake of food and hydration. Her current dietary habits are incompatible with life. It has been accepted by all parties, which included clinicians from the Hospital Trust that without clinical intervention, P will die. P’s siblings believed that hospital interventions were traumatic for P, such that they worsened rather than improved P’s condition. The Judge met with P virtually and understood that she expressed a desire to get better. 

The Court weighed up all the factors in the balance and declared that providing hydration and nutrition to P in accordance with a treatment plan and an escalation plan if the treatment plan was not to work, was lawful and in P’s best interests. The plan outlined that P would be electively admitted into a side room on a ward of the hospital, that there would be a physical restraint in place to enable IV access and then a chemical restraint or sedative would be required to get P to a level where she required minimal physical restraint. If P was unable to be safely managed on the ward, the treatment plan outlined that she would be moved to an Intensive Therapy Unit and would require sedation and a PICC line. 

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

A Local Authority v PG & Ors [2023] EWCOP 9

hawamayetLeave a comment

 

This case concerns P’s views in relation to contact with care workers and receiving care where P’s capacity may fluctuate.

Background

P is a 34-year-old woman with a diagnosis of autism spectrum disorder, Emotionally Unstable Personality Disorder, and mild learning disability. She currently lives in a supported living placement. Before then, she lived with her mother where a deterioration in her mental health led to her being admitted under s2 of the Mental Health Act. There had been a number of incidents involving P around drugs, alcohol and approaching younger men in public and it was necessary for the Judge to consider whether P had capacity.

Views of the Social Worker and the Medical Expert

At the hearing, a social worker talked of potential triggers for P’s behaviour and Dr Jordan King, who is a Highly Specialist Clinical Psychologist at the Intensive Support Team of the Adult Neurodevelopmental Services for a NHS Trust, prepared a report for s.49 Mental Capacity Act 2005 purposes. Dr King gave oral evidence to the Court and was cross examined regarding P’s fluctuating capacity and the circumstances in which this occurred. Dr King explained that when P was calm, she could assess and weigh up risks but when faced with a trigger, P would become agitated and would struggle with weighing up and understanding information.

Conclusion

A Judgement was made that P should be deemed as lacking capacity, but emphasis was placed on the fact that when being assisted by the care workers, P’s autonomy should be protected, and interference should be kept to minimal levels to keep P safe.

The Judge considered the complexities of the fluctuating capacity for P and the difficulties the care workers would face in having to exercise a complicated decision-making process in order to decide whether at any individual moment P did or did not have capacity. This would then vary depending on the individual care worker, and how much of the particular episode they had witnessed. The Judge deemed that the result of this would fail to protect P, probably have minimal benefit in protecting her autonomy and in practice make the law unworkable.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

Cambridge University Hospitals NHS Foundation Trust & Anor v RD & Ors (2022) EWCOP 47

hawamayetLeave a comment

This case concerns P who had been diagnosed with an Emotionally Unstable Personality Disorder which had resulted in two incidents of self-harm in which the inserting of a tracheostomy tube, led P to attempt to cut her throat. P was given the choice to either keep the tracheostomy tube, reduce and then stop sedation and to undertake training to manage her tracheostomy in the longer term or have the tracheostomy tube removed following which a palliative care plan would be put into effect. A Court of Protection hearing was listed on 12 August 2022.

Background of the case

P has a long history of mental health difficulties and has spent significant periods in psychiatric units since the age of 15. Since 2021 she has had three periods of detention under the Mental Health Act. P has been diagnosed with Emotionally Unstable Personality Disorder, Post Traumatic Stress Disorder and at some points with Psychosis. P has had many incidents of very serious self-harm.

As P had previously tried to remove her tracheostomy tube twice, a decision was to be made as to whether to keep the tracheostomy tube, reduce and then stop sedation and undertake training to manage her tracheostomy in the longer term or have the tracheostomy tube removed following which a palliative care plan would be followed.

Views of P’s Parents and Dr A

When P was calm, she expressed a desire to live and P’s parents explained that this had become a pattern over the years in which P would express her view that she wished for treatment and would then begin self-harming.

P’s doctor (Dr A) explained that P had a psychological need for autonomy and the only realistic hope for P was for her to believe that she was in charge of her own life. Dr A explained that if P believed nobody would intervene to prevent her harming herself, she may not remove the tube. However, this plan could also lead to her death.

Role of the Official Solicitor

An Official Solicitor was enlisted to work on the case because of the difficulties in establishing the degree to which P had capacity and in establishing what her wishes were. The Official Solicitor accepted that the Court should seek to maximise P’s autonomy and that there was little prospect of any long-term recovery from her mental ill-health.

Conclusion

Before a judgement could be made, P sadly passed. However, in the judgment later released, it was stated that it was in P’s best interests, for the care and treatment plan proposed and agreed by all parties to be put in place, accepting that this may lead to her death.

With regards to whether the Court of Protection had jurisdiction on the matter, due to the fact that P lost capacity when she was distressed, the Judge ruled that this was a Court of Protection matter.

The Judge considered the parents views that they believed that the time had come to let P make her own choice which regards to her care. The evidence of Dr A, and P’s parents was that the most important thing for P was a sense of autonomy. This would suggest that continued physical restraint and replacing the tube if she removed it, undermined P’s autonomy and further damaged her mental health. The judge was guided overall by the sense of autonomy for P as restraining her and replacing the tube offered no long-term solution to her physical or mental issues. There was very little, if any, prospect of any long-term improvement to P’s mental health. Therefore, that form of treatment appeared to be futile in anything other than the very short term.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

A Local Authority v ST (Costs application) [2022] EWCOP 11

hawamayetLeave a comment

Background

An application for costs was made by the Official Solicitor following an ineffective hearing about whether the Protected Party had sufficient capacity to use social media.

The hearing was due to take place in the midst of proceedings concerning a Protected Party, a young woman with a diagnosis of a mild learning disability and ADHD which was exacerbated by childhood trauma. She had gone missing over Christmas 2021 and there was an agreement that she lacked the necessary capacity to make decisions regarding her residence and care so interim orders were made for the Local Authority. There was a disagreement between the Local Authority and the Official Solicitor over the Protected Party’s capacity to use social media and the Local Authority wanted to restrict the Protected Party’s access to social media.

A hearing was to be held on 3 March 2022 and the social worker’s statement was due to be served before noon on 25 February 2022 but was instead served after 5 pm that day. The Local Authority’s position statement was due at 4pm on Monday 28 February 2022 and the timetable was established as such so that the social worker and the legal team at the Local Authority should have been ascertaining their position but this did not happen. Instead on 1 March 2022, the Official Solicitor’s statement was served on the Local Authority in compliance with the directions, but Counsel for the Local Authority was instructed the next day to draft a position statement and appear at a hearing. That document was dated 2 March 2022 and was sent to the Court before 5pm on 2 March 2022. That position statement conceded that there was insufficient evidence to rebut the assumption of the Protected Party’s capacity to make decisions about accessing the internet and social media.

In personal welfare cases the ‘general rule’ as to costs is that “there will be no Order as to the costs of the proceedings.”: COPR’2017 r 19.3. However, the conduct of the parties in the proceedings could lead to an Order being made.

COPR 19.5(2) states:

The conduct of the parties includes

(a) conduct before, as well as during, the proceedings;

(b) whether it was reasonable for a party to raise, pursue or contest a particular matter;

(c) the manner in which a party has made or responded to an application or a particular issue;

(d) whether a party who has succeeded in that party’s application or response to an application, in whole or in part, exaggerated any matter contained in the application or response; and

(e) any failure by a party to comply with a rule, practice direction or court order.

Findings

The matter that led to the hearing of 3 March 2022 was whether the Protected Party had capacity to make decisions about social media access and, if she did not, whether it was in her best interests for restrictions or a prohibition to be imposed. The Official Solicitor’s position was clear and the Local Authority was aware that this was the subject of the hearing. It was important to both parties, but particularly the Local Authority who sought to restrict her social media use, to ensure that they conducted themselves in accordance with the directions made by the Court and consider the strength of their case continually. A failure to do so by either side could have led to an unnecessary expenditure of time and money.

The Judge ruled that the Local Authority should have known by 25 February 2022 that their case was weak. The failure to serve an updated paginated bundle by 4 pm on 28 February pointed to a lack of time. The social worker’s witness statement was also served late. Had matters proceeded as they should, by Monday 28 February 2022, the Local Authority should have had a clear position, and that should have been the subject of their position statement that should have been served by 4 pm that afternoon. It was not. Instead, the Official Solicitor had to provide a position statement responding to the Local Authority’s unknown case. By the time the Local Authority instructed Counsel, the deadline for their position statement had passed. At no stage did the Local Authority seek an extension to the timetable, or to vacate the hearing on 3 March.

The Judge was satisfied to depart from the general rule as a result of the failings of the Local Authority as their conduct had fallen below a proper standard. It was found to be unreasonable for the Local Authority to continue to pursue the specific matters in relation to social media restrictions, when the capacity and best interests evidence was weak. There was a failure to comply with the directions Order that had been made by the court with the parties’ general agreement.

The Judge when deciding what Order was to be made considered that some directions would have had to be made once it was clear that the hearing listed  was to be ineffective. Time would have had to be incurred in formulating an Order. However, none of that was likely to have involved a hearing and if it had, it would not have been all day or have needed to be attended.

Decision

The Local Authority was ordered to pay 85% of the Costs incurred by the Official Solicitor of and incidental to the hearing on 3 March 2022, not including the cost of the judicial visit, which would not have occurred.

If the parties could not come to an agreement on a liquidated sum, the Judge directed that the Official Solicitor submit to the Court within 14 days, a costs schedule and the Local Authority would have 7 days to contest the same. The costs would have been assessed after that.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.