Impersonating a Protected Party grounds for imprisonment – Dudley v Hill

Court of Protection orders imprisonment of a Respondent for falsely impersonating the Protected Party and breaching an injunction.

In the case of Dudley Metropolitan Borough Council v Hill (2018), the Court of Protection made an Order for committal to prison after the Respondent was found guilty of impersonating the Protected Party and incurring costs on the Protected Party’s behalf without the authority to do so.

The Court of Protection were concerned for the Protected Party, both in relation to his health and welfare and also his property and financial affairs. There had been a provisional declaration made within the proceedings that the Protected Party lacked capacity. The Protected Party resided in his own home with his support workers, and the Local Authority were heavily involved in the matter.

The Protected Party was an 82-year-old man who suffered from dementia and the Respondent had been impersonating the Protected Party for a significant amount of time. The Respondent was served an injunction which forbid him to directly or indirectly contact the Protected Party or come within 100 meters of his property. The Respondent breached the injunction by attending the Protected Party’s property on 25th November 2017 and in January 2018, the Respondent fraudulently arranged for the installation of BT equipment without the required authority. Furthermore, the Respondent made a large number of telephone calls from the Protected Party’s property, which incurred unnecessary charges and proved that he had entered the Protected Party’s property.

The Respondent was required to attend a hearing, which was to determine whether he had breached the Order for injunction. The Respondent failed to attend the hearing and the Court then found him guilty as a result of the breach of the Order of injunction. The Respondent was sentenced to 4 months imprisonment, to be served concurrently.

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

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Various Incapacitated Persons, Re (Appointment of Trust Corporations As Deputies) [2018] EWCOP 3

Where concerns were raised when Trust Corporations apply as a Deputy for the Financial and Property affairs of a Protected Party.

A judgment was issued whereby the courts raised their concerns when considering an application that had been made to appoint a Trust Corporation as a Deputy, for the financial and property affairs of a Protected Party. Judge Hilder informed of the details required for the Court to be satisfied that the corporation is a fit and proper legal person to hold such appointment.

The case involved 36 applicants covering 11 different trust corporations, all of which are connected to solicitor practices.

The proposed Deputy (the Trust Corporation) is a Trust Corporation within the meaning of section 64(1) of the Mental Capacity Act 2005 and can lawfully act as such; and the Trust Corporation will inform the Office of the Public Guardian (OPG) immediately if that ceases to be the case.

The Trust Corporation will comply with the OPG’s published standards for professional deputies.

EITHER:

(i) The Trust Corporation is authorised by the SRA;

OR 

(ii) all the directors of the Trust Corporation are solicitors and it employs no one (save to the extent that it employs a company secretary); and

(iii) the Trust Corporation will retain its associated legal practice to carry out all practical work in relation to the management of the incapacitated person’s property and affairs; and

(iv) the Trust Corporation is covered by the professional indemnity insurance policy of its associated authorised legal practice on the same terms as that practice;

The Trust Corporation will notify the OPG immediately, if there is any change to any of the matters set out in paragraph 3 above.

The Trust Corporation must also ensure that it obtains and maintains insurance cover..

The Trust Corporation will lodge a copy of the insurance policy with the OPG on appointment and will inform the OPG immediately if there is any reduction in the terms or level of the insurance cover.

The note offered some explanations as to why a law firm might chose to create a Trust Corporation, these include:

  1. A Trust Corporation is designed to increase flexibility and improve services for clients. By creating a Trust Corporation, you can streamline the administration of estates and trusts to provide greater flexibility in the day-to-day administration of the files that it handles.”

From the Protected Party’s perspective, the benefits of appointing a Trust Corporation include:

1. Continuity – new trustees are never needed as a Trust Corporation never dies, goes on holiday, gets ill or retires. This can create substantial savings in professional fees: each time an individual trustee retires and a new trustee appointed, a deed needs to be created and the assets of the trust have to be transferred, whereas with a Trust Corporation, the appointment and retirement of directors will not affect the assets within particular trusts.

2. Availability – individual trustees aren’t always available due to holidays and other commitments, but a Trust Corporation will always be available.

3. Professionalism – Trust Corporation signatories will be senior members of the private client department of the firm who deal with trusts and estates every day.”

These identified benefits are procedural or financial. Whilst these are important, they are not the only aspects to consider. It was explained in the judgment that “each case will be different but Deputyships generally also require an appropriate person-to-person interaction with the protected person and often their family. Considered from that perspective, it can be seen that the benefit of continuity accrues also to the law firm – a client is retained for the long term, even if the individuals familiar with the case change firms.

Conclusion

A Trust Corporation can apply to be on the Office of the Public Guardian’s panel of deputies, but there is no ‘panel’ of Trust Corporations which have demonstrated compliance with legal requirements to act. Information necessary to satisfy the Court as to suitability must therefore be ’built into’ the application process itself.

 If you have any queries, please do not hesitate to contact Georgia Clarke (georgia.clarke@clarionsolicitors.com) or the team at COPCosts@clarionsolicitors.com.

 

The Hospital Trust v V & Ors [2017] EWCOP 20 (20 October 2017)

The Protected Party is 21 and suffers from a severe learning disability. She has an ‘understanding‘ age of about 3-5 years. She conceived a child in late 2015, by means which in all probability amounted to rape. The perpetrator of the sexual assault remains unknown by neither the family or the Protected Party. In 2016, she gave birth to a child that was placed in foster care.

At 28 weeks pregnant, the Health Authority sought the authority of the Court of Protection to arrange the delivery of the baby by caesarean section; Newton J made the relevant order in August 2016, and the baby was born on the following day.

The father of the baby is unknown. The circumstances of the conception were undetermined although it is believed that the father may be a friend of one of the Protected Party’s brothers. There is professional agreement that the Protected Party did not have the capacity to consent to sexual intercourse.

The Protected Party was confused and distressed at the pregnancy and confinement, and immensely distressed when her baby was removed from her care, pursuant to emergency orders obtained under Part IV Children Act 1989. Professionals speak of an extreme reaction to these events: a “significant physical and psychological trauma“.

An Application was made to the Court of Protection in 2016 for best interests determinations relevant to ante-natal care, and the delivery of the baby. The issues before the Court now are:

  1. i) Whether the Protected Party has the capacity to consent to sexual relations:
  2. ii) Whether she has the capacity to agree to the administration of non-therapeutic contraception;

iii) Whether it is in the Protected Party’s best interests that she receives non-therapeutic contraception.

All parties shared a strong common objective to protect the Protected Party from further harm, and specifically from sexual exploitation and pregnancy. However, they differ as to the means by which this can, or should, be achieved.

The Applicant, The Hospital Trust (“the Health Authority“), supported by the community learning disabilities team of the relevant Local Authority (“the Local Authority”) contend that it is in the Protected Party’s best interests that she should be provided with contraception as part of a wider safeguarding package, that should be trialled for a number of months.

Any medical intervention she found traumatising and she was scared. Though physically she healed well after the baby, the removal of the baby had a devastating effect on her emotional and psychological welfare. She could not understand where the baby was and was constantly asking for her baby. She was physically lashing out at her mother, self-harming, not sleeping, not eating, throwing herself on the floor and the community care officer took her to the GP and she got anti-depressants.

Following the delivery of the baby, professional attention swiftly turned to the formulation of a plan to prevent a recurrence of the pregnancy. Attentions turned to educating the Protected Party about sexual health. The Official Solicitor acting on the Protected Party’s behalf indicated that contraception was not necessary, and that the safeguarding package is sufficient to protect her.

The safeguarding plan appears to have been broadly successful, however, there have been a number of lapses of the safeguarding plan over the last 12 months. These lapses are admitted by the parents. They included leaving the Protected Party alone with her male siblings, on a number of occasions, which was against the safeguarding policy that had been decided upon.

Best interests

There is disagreement between the advocates as to the correct approach to the best interests of the Protected Party and a number of questions were raised:

i) Is it in the Protected Party’s best interests that she receives contraceptive protection?

ii) If so, what form of contraception is in her best interests, as the less restrictive option?

iii) If contraception is in her best interests, is it in her interests that such contraception is first trialled?

iv) Would the benefits of the contraceptive outweigh the negatives with regards to the best interests of the Protected Party?

It was decided that the Health and Local Authorities say that the safeguarding plan has been robust, but that contraception offers an important additional level of safeguard in the event that the plan fails.

The authorities argue that contraception will materially reduce the risk of pregnancy yet further. The social worker summarised the position in her oral evidence thus:

Even though I believe that the plan is robust and the family are working with us, breaches are still happening, and the last two breaches, the parents did not even know of the Protected Party’s whereabouts.”

They continued, “this will give us an extra layer of protection, in the event that anything goes wrong, or not within the family’s control. However, it was agreed by all that the Protected Party would need assistance in administering the contraception and charts would be created monitoring the menstrual cycle of the Protected Party.”

In considering all the issues raised, the views of the Protected Party were taken into consideration. The Protected Party demonstrated a “clear ability to learn“, and had an understanding of certain forms of contraception, is able to identify these and is “able to demonstrate the part of the body where each contraceptive is used.” The following were considered:

i) She does not wish to become pregnant again, or to have further children;

ii) She wishes to avoid surgery;

iii) She does not want intrauterine contraception;

iv) She would favour the patch (the view formed by the community matron.)

Following a number of reviews, it was concluded that the Protected Party had limited understanding of the “patch” and the link to pregnancy.

Judgment

By noting that the Protected Party is not sexually active, had no boyfriend, and that the proposed administration of contraception is non-therapeutic. It was judged against making a decision that is unfavourable and is one that respects the Protected Party’s Article 8 rights, and maintains clear focus on what is best for the Protected Party’s, striking the balance between protection and empowerment.

I return to the point I made at the outset of this judgment: the combined objective of the parties to ensure that the Protected Party is protected from further harm. The Local Authority considers that the safeguarding plan is “as robust as it can be”. Although The Protected Party’s mother has deposed in her signed statement to the fact that her daughter “… is never alone, she comes everywhere with me”, this has been shown – even very recently – not to be true.

The fact that the protection plan would remain unaltered whether contraception is administered or not does not mean, that there are not real advantages to the Protected Party receiving contraception. The safeguarding plan is designed to reduce the risk of sexual exploitation particularly outside of the home; contraception is proposed to reduce the risk of pregnancy in the event that the plan fails. If this additional safeguard can be introduced without undue side effects, and is a safeguard which the Protected Party is not unwilling to accept, then the best interests balance tilts in favour of its use.”

The prospect of any medical intervention, even the simple task of being weighed and measured in a clinic, and of blood pressure being taken, has left the Protected Party “petrified” in the recent past. It is vital for the court to reduce the need for such medical interventions.

It was decided that it may be that the side-effects of the patch are uncomfortable to the Protected Party in that regard and that the disbenefits of the contraceptive patch outweigh the benefits. This will only be known after a trial of the patch. At the conclusion of the trial period, or at an earlier time, should it become clear that the contraceptive patch is not appropriate, a best interests’ meeting will be held, at which a decision will be taken as to whether it is right to continue with the patch or whether an alternative method of contraception should be attempted, or whether the likely disbenefits of continuation or of any other form of contraception outweigh the benefits.

It was declared that it was in the Protected Party’s best interests that a contraceptive patch be administered for a trial period of up to six months. I shall list the case for review to coincide with the end of the trial, when further decisions can be taken.

I wish to make clear that this decision is about the Protected Party, and her best interests; the decision is taken in the context of her unique situation. I wholly reject the submission on behalf of the Official Solicitor that by declaring contraception in the Protected Party’s best interests I would in one way or another be setting a precedent for all incapacitous and vulnerable women.”

If you have any queries, please do not hesitate to contact Georgia Clarke (georgia.clarke@clarionsolicitors.com) or the team at COPCosts@clarionsolicitors.com.

Litigation costs in Court of Protection bills – are these recoverable?

It is extremely common for Deputies to be involved in ongoing litigation claims for Protected Parties. Deputies often become involved in interim payment applications and are usually asked to disclose details of the Protected Party’s affairs to the litigation solicitor to assist with the Schedule of Loss and other documentation. The main question that needs to be answered however is whether these costs can be claimed within the general management bill of costs.

Unfortunately, the answer is no…

Master Haworth considered a bill of costs where the Deputy had incurred costs through communications with the litigation solicitor to outline the Protected Party’s affairs to assist with an ongoing litigation claim. Master Haworth disallowed the costs that related to the litigation claim and he stated that “where the Deputy is being asked to provide information and/or schedules and/or documentation to support an interim payment application in an ongoing litigation these are not general management charges”.    

Master Haworth directed the Deputy to withdraw their bill of costs and to re-submit a new bill of costs which did not include the litigation costs to allow him to solely assess the general management costs that had been incurred.

It is advisable that the Deputy’s costs which relate to the Protected Party’s litigation claim are not included within general management bills. Costs which relate to the litigation claim should be recovered within the litigation bill of costs. The Deputy should therefore outline their costs to the litigation solicitor to ensure that the costs are remunerated correctly.

If you require any further advice or assistance in relation to your Court of Protection costs, please do not hesitate to contact the Clarion Costs Team on COPCosts@clarionsolicitors.com or 0113 246 0622.

Costs after Death in the Court of Protection

The Deputy’s authority to recover their costs after the Protected Party’s death can be a grey area. In some cases, the Deputy will have authority to subject their costs to detailed assessment however in most incidents the Protected Party’s estate will be in probate whereby the Deputy’s costs will be agreed with the Executors of the estate.

Rule 165 under Part 19 (Costs) to the Court of Protection Rules 2007 states that the Deputy’s costs can be remunerated where “an order or direction that costs incurred during the Protected Party’s lifetime be paid out of or charged on his estate may be made within 6 years after the Protected Party’s death.” If there is no Order as to costs then the Deputy cannot be remunerated through detailed assessment.

When the Protected Party’s estate is dealt with by the Executors, two approaches can be adopted. If the Executors do not contest the Deputy’s costs, the Deputy will be invited to raise a final invoice which will then be settled from the Protected Party’s funds once the Grant of Probate has been drawn. Where the Deputy’s costs are disputed, the Executors can elect for the Deputy’s costs to be subject to detailed assessment.

In either of the above situations, the Deputy’s authority to administrate the Protected Party’s affairs will be discharged on the Protected Party’s death unless an Order is made to extend the Deputy’s powers.

If you require any further advice or assistance in relation to your Court of Protection costs, please do not hesitate to contact the Clarion Costs Team on COPCosts@clarionsolicitors.com or 0113 246 0622.

Welfare Costs within the Court of Protection

Rule 157 of the Court of Protection Rules 2007 states that “where the proceedings concern P’s personal welfare, the general rule is that there will be no order as to costs of the proceedings or that part of the proceedings that concerns P’s personal welfare”. Please note however there are exceptions to this rule.

If the general rule is applied, each party involved in Court of Protection proceedings which concern the P’s personal welfare are liable for their own costs. On the other hand, Rule 159 states that in some circumstances, the Court may depart from the general rule. Before an Order can be made, the Court of Protection will take into account these variables:

  • the conduct of the parties;
  • whether the party has succeeded on part of their case, even if they have not been wholly successful; and
  • the role of any public body involved in the proceedings.

In terms of the conduct of the parties, the Court of Protection will consider:

  • conduct before and during the court proceedings;
  • whether it was reasonable for a party to raise, pursue or contest a particular issue;
  • the manner in which a party has made or responded to an application or a particular issue;
  • whether a party who has succeeded in their application or their response to an application exaggerated any matter contained in the application or response.

It is important to note that even if one or more of the above variables are applicable to a case, the parties should not expect the Court to make an Order and therefore they should be able to bear their own costs.

Welfare Deputies

Deputies can be appointed to make decisions in respect of P’s personal welfare however these are only applicable to extreme cases. Paragraph 8.38 of the Code of Practice states that a “Deputy for personal welfare decisions will only be required in the most difficult cases where important necessary actions cannot be carried out without the Court’s authority, or there is no other way of settling the matter in the best interests of the person who lacks the capacity to make particular welfare decisions”.

Before a Welfare Deputy is appointed, the Court will consider the evidence and make decisions in relation to the following:

  • Deciding where P should reside;
  • Deciding what contact, if any, P should have with any specified person;
  • Making an Order prohibiting a named person from having contact with P;
  • Giving or refusing consent to the carrying out or continuation of a treatment by a person providing healthcare for P;
  • Giving a direction that a person responsible for P’s healthcare allows a different person to take over that responsibility;
  • Deciding whether P has the capacity to marry and the capacity to have sexual relations.

Where a Welfare Deputy is appointed, they are entitled to recover their costs from P’s estate on the basis that there is provision to do so within the Order. Practice Direction B (Part 19) to the Court of Protection Rules 2007 states “where the Court appoints a professional Deputy for personal welfare, the Deputy may take an annual management fee not exceeding 2.5% of P’s net assets on the anniversary of the Court Order appointing the professional as Deputy for personal up to a maximum of £500”.

If you require any further advice or assistance in relation to your Court of Protection costs, please do not hesitate to contact the Clarion COP Costs team on COPCosts@clarionsolicitors.com or 0113 246 0622.

How Valuable is the Protected Party’s Estate?

The proportionality test is being applied to Court of Protection matters. In our experience the Senior Courts Costs Office (SCCO) are adopting a harsher stance on assessment and in light of this, we are continually adopting new approaches to increase the recoverability of the Deputy’s costs and ensure an ever improving service.

Our experience has shown that the SCCO assess bills more favourably when the details of the Protected Party’s estate are provided. Such information includes; details of assets and liabilities, value of any property and any settlement monies received. We believe that the Costs Officer uses this information to determine whether the Deputy’s costs are reasonable and proportionate to the Protected Party’s estate. For example, it would not be reasonable and proportionate to claim costs of £20,000.00 if the Protected Party’s estate is worth only £18,000.00.

By providing the SCCO with this additional information, this may increase the recoverability of your costs. We are not suggesting that you provide an in depth breakdown of the Protected Party’s estate however an approximate figure in terms of the overall value would help to justify the costs claimed.

If you require any further advice or assistance in relation to this blog or Court of Protection costs, please do not hesitate to contact Julianne Brown (julianne.brown@clarionsolicitors.com and 0113 336 3320) or the Clarion Costs Team on 0113 246 0622.