Tag: Office of the Public Guardian

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.

 

The Modernising of the Lasting Power of Attorney

Ellie Howard-TaylorLeave a comment

The lasting power of attorney (LPA) was introduced in 2007. It was designed to provide more flexibility and greater protections than its predecessor, the enduring power of attorney (EPA). In more recent years, demand for digital services has increased significantly. Digital channels provide many opportunities to improve access and speed of service.

Due to this, the Ministry of Justice and OPG are working together to modernise LPAs.

Their aims of this work are to:

  • increase safeguards, especially for the donor
  • improve the process of making and registering an LPA for donors, attorneys and third parties
  • achieve sustainability for OPG whilst keeping LPAs as affordable as possible for all people in society

Creating a modern LPA service will require changes to the Mental Capacity Act 2005 and the supporting secondary legislation. The Ministry of Justice has launched a consultation and they need public views on the proposals and to collect evidence on how to proceed with the development of solutions.

Submitting your response:

MLPA – Vulnerability Policy Unit 
Family and Criminal Justice Policy Directorate
Ministry of Justice 
Post point 7.25 
7th Floor 
102 Petty France 
London 
SW1H 9AJ

A standard response prepared by Caroline Bielenska can be located at Standard Response Template. The deadline for submissions is the 13 October 2021.

If you have any queries on any of the above, please do not hesitate to contact Ellie Howard Taylor atellie.howard-taylor@clarionsolicitors.com

Lockdown Lowdown – Francesca Gardner

Stephanie KayeLeave a comment

This blog forms part of a series of weekly interviews with several professionals during lockdown. It aims to inform Deputies and their teams about how each organisation within the field of Court of Protection has adapted to Covid-19 and what they should be aware of. Our third participant for Lockdown Lowdown is Francesca Gardner from Kings Chambers, who has chosen a hectic time to return from maternity leave!

How has the Court of Protection adapted to lockdown?

The COP has adapted extremely well, and at speed to the pandemic. The Vice President has been instrumental in ensuring that the court continues to function. Hayden J has released a number of helpful guidance documents. The reality is that there will be some cases that will be delayed but there is a clear and concerted effort from the court’s to ensure that urgent cases are being properly determined. For example, within days of the lockdown measures being announced by the government, the COP heard a Serious Medical Treatment case (over a number of days) via Zoom.

I know of and am involved in many cases that are being and are scheduled to be heard over the coming weeks.

What impact do you think this will have on professional Deputies?

I am optimistic that there will not be a significant impact upon deputies, save for the challenges in maintaining contact with P and any delays that may be faced as regards court proceedings. HMCTS has issued its ‘family business priorities’ for April 2020 setting out what work must be done, what work will be done and what work HMCTS will do its best to do. Property and Affairs work falls under the work that court ‘will do it’s best to do’, whilst this may be frustrating to deputies I am aware of several P&A cases being heard both in the regions and in London so whilst there may be delays I would hope that deputies will still have proper access to the court’s should they need it on behalf of P.

Have you learnt anything so far from the pandemic?

The importance of slowing down, as lawyers we work at 100mph and I hope that lockdown has forced us to re-evaluate a little and find a better balance going forward. I am thinking ‘pigs might fly’ as I write this.

Have there been any reoccurring issues that Deputies should be aware of?

The main issue in my view and that, which I am aware of, is contact with P and ensuring that communication between P and the deputy continues. It is important that deputies think creatively during the pandemic to ensure that they (and others) can maintain contact with P. For example and where possible the purchase of an iPad or a request to the staff at the care home and/or support staff to support P to use Skype may be of real benefit. In BP v Surrey County Council 2020 EWCOP 17, the Vice President of the Court of Protection, Hayden J, reiterated the importance of P maintaining contact with others and how this should be approached based on the specific needs of the person. For example, telephone contact would not be appropriate where the person is deaf, but Skype maybe and they should be supported to use that facility.

Do you think there will be any reoccurring issues that Protected Party’s face as a result of this?

I would like to think not but I think delay will be inevitable in some cases, particularly cases that are none urgent in nature.

What do you think Deputies should be thinking about?

Whilst it may be a very difficult time, deputies must remember that their roles and responsibilities remain the same throughout the pandemic, that includes in circumstances where the deputy may be self-isolating in line with the government guidelines. The Office of Public Guardian has provided some guidance for deputies during the pandemic, within the guidance it states:  ‘If you are self- isolating or shielding, you must continue to make decisions for P. You cannot ask anyone else to make those decisions for you.’ However, attorneys and deputies can make a decision and ask someone else to carry it out. The guidance reminds deputies that they do not have to step down in their role simply because they are unable to visit the person.

How have you been keeping busy during lockdown?

My little boy keeps me very busy, but returning to work has also kept me busy. I try to exercise alone as regularly as I can. Running has always been my ‘go to’ for exercise and its great for clearing your head, particularly with all that is going on at the moment.

What are you most looking forward to after lockdown?

Spending time with family and my little boy, it has been hard that no one has been able to see him so I am very much looking forward to that!

Clarion would like to thank Francesca for taking part in Lockdown Lowdown and for her helpful insight. Coming up in the series, we will be hearing from Ria Baxendale from the OPG. If you would like to suggest another interviewee for Lockdown Lowdown, please contact Stephanie Kaye at stephanie.kaye@clarionsolicitors.com or call 0113 336 3402.

OPG consultation on ‘Hardship’ Cases

laura courbetLeave a comment

In November 2019, Clarion hosted another Court of Protection Masterclass and the event was widely attended, including speakers from the Office of the Public Guardian (OPG), Slater Heelis Solicitors and Clarion. Ria Baxendale from the OPG revealed that there is currently a consultation underway to increase the percentage fixed fee allowed in Hardship Cases.  

Practice Direction 19B sets out what can be claimed by a Solicitor. Currently, where the net assets of P are below £16,000, the professional deputy for property and affairs may take an annual management fee not exceeding 4.5% of P’s net assets on the anniversary of the court order appointing the professional as deputy. This has remained the same for a number of years and these cases have been widely referred to as ‘Hardship Cases’. 

The OPG and the Court recognise that it’s very difficult to manage a client’s need with such a small fixed fee available, particularly when cases of this nature can often be the most demanding. In order to ensure that professional deputies can continue to manage the property and affairs of vulnerable clients, the fees need to be sustainable, which is an ongoing concern of professionals.  

If there are any changes made to the Practice Direction, particularly the percentage fixed fee for cases of this nature, we will further notify our database.

Could breaching a transparency Order ultimately lead to an application for imprisonment?

Casey McGregorLeave a comment

In the case of Office of the Public Guardian v Stalter [2018] EWCOP 27, an application was made by the Office of the Public Guardian to commit the Protected Party’s partner to prison due to him disclosing information that was in breach of a transparency Order.

The Protected Party had been diagnosed with dementia in March 2016, from October 2016 to January 2018, the Protected Party’s partner, named Mr Stalter, had communicated with a number of different people in a certain way which lead to a breach of the transparency Order. The transparency Order stated that ‘proceedings were not to be published, nor were the identities of other parties to be published, nor was any information tending to identify those individuals as a patient or parties to be published, nor were their addresses or contact details to be published.’ During this communication to various individuals, Mr Stalter advised that the Protected Party was in fact subject to the Court of Protection proceedings and further advised on the individuals that were parties to the proceedings, which included himself. Mr Stalter further disclosed personal details, which was in fact prohibited by the transparency Order, therefore the Protected Party’s partner had breached the Order. The Office of the Public Guardian therefore wished to bring a committal Order.

Mr Stalter was found to be in contempt of Court, however the Court determined that no Order for his committal needed to be made having regard to the fact that he did confirm that he would abide by the Order. The Courts were of the opinion that no punishment would be appropriate for this case due to the fact that Mr Stalter had already suffered as a result of the situation.

If you have any queries, please do not hesitate to contact Casey McGregor or the team at COPCosts@clarionsolicitors.com