Assisted dying and powers of attorney

 In Elderly/Vulnerable Client

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Re DA & others [2018] EWCOP 26

This is a very interesting judgment by Lord Justice Baker that concerns two applications brought by the Public Guardian, and made under section 23 and Schedule 1 paragraph 11 of the Mental Capacity Act 2005, in relation to the validity of the words in Lasting Powers of Attorney (‘LPAs’). The first test case relates to words regarding euthanasia or assisted suicide and the second concerns words as to the appointment of multiple attorneys.

The substance of the issues in which the words are directed are very different in the two cases but there is legal overlap as the active parties are the same in the two sets of proceedings, the Public Guardian and the Official Solicitor.

The Court of Protection has given guidance to the Public Guardian as to whether such provisions incorporated within LPAs similar to these series of test cases will be severed

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The guidance is very useful not only to the Public Guardian but also for Practitioners when advising clients in relation to the provisions that they incorporate within LPAs.

It is increasingly useful to consider a complaint to the Local Government & Social Care Ombudsman when trying to resolve problems with social care. This was highlighted in the case of the LG & SCO & South Gloucestershire CC 17 013 122.

In this case Mr C had a number of health problems including Parkinson’s disease and dementia. Until 2017 he remained at home with Mrs C his main carer, assisted by the rest of the family. In March 2014 he started to receive the higher rate of Attendance Allowance which was used to support his needs.

Mr & Mrs C have four children – three of them were assisted to buy their properties by gifts from the parents in the 1980s; their daughter lived in rented accommodation due to her husband’s job as a police officer. Helping their daughter buy a house only became possible when her husband retired (2016) and then became urgent when their landlord was to redevelop – they gave £30,000 to their son-in-law to assist in the purchase in June 2017.

Following a deterioration in Mr C’s condition a best interests meeting was held on 6 July 2017 and it was decided he should move into a nursing home on a permanent basis. Mr C’s contribution was said to be £557 per week & he moved into care on 3 August 2017.

A financial assessment was only then conducted and the Council decided there was deliberate deprivation and no financial support would be available. Bills were sent to Mrs C for over £16,000 & debt collectors appointed causing great anxiety.

Mrs C asked the Council to reassess their decision – they took this as a complaint and reviewed their decision saying that as Mr C had been awarded the higher rate of attendance allowance in 2014 there was a reasonable expectation then he would need a package of care yet he chose to make a gift of £30,000 to his son-in-law.

The law

Annex E of the Care & Support Statutory Guidance says:

  • Must identify circumstances of deliberate deprivation
  • Treat people with dignity & respect as able to spend money as they wish
  • Deprivation should not be automatically assumed
  • Motivation relevant

The decision

The LG&SCO held there was fault on the Council’s part as it did not consider the case on its facts. Whilst it was reasonable to consider a gift of £30,000 as deliberate deprivation it did not explore the reasons why the Cs made the transfer when they did nor did the Council explain why they decided it was an act of deliberate deprivation.

The Council also failed to carry out the financial assessment in accordance with the Care Act 2014. The argument that receipt of higher attendance allowance meant ultimately a care package would be required was flawed.

The LG &SCO ordered the Council to pay compensation of £250 for the distress caused to Mrs C and required the Council to re-think its position in this case and review it procedures.

Observation

It was interesting to note that the Ombudsman again reiterated that it is for the Council to show the motive behind the gift was substantially the deliberate deprivation of assets to enhance receipt of means tested benefits. It is perfectly possible to make gifts for other reasons, as in this case, and there should not be a presumption of deliberate deprivation. These LG&SCO decisions should be useful to practitioners when challenging care plans and assessments for clients.

Deputyship – Re SH [2018] EWCOP 21

HHJ Hilder had to consider an application by the Head of Business Development and Client Finance of Focus Independent Adult Social Work C.I.C (‘Focus’) as Property and Affairs Deputy for SH.

The judgment is important, as it provides clarification of the interpretation and application of s. 19(2) MCA 2005 in relation to the appointment as Deputy of a qualified individual holding an office in an approved organisation to act on behalf of a protected person.

The law

S.19 of the MCA 2005 provides (so far as is relevant) as follows:

A deputy appointed by the court must be-

  • An individual who has reached 18, or
  • As respects powers in relation to property and affairs, an individual who has reached 18 or a trust corporation
  • The court may appoint an individual by appointing the holder for the time being of a specified office or position

The decision

S.19 of the MCA 2005 can be read plainly. Subsection (2) provides for a particular method of meeting the requirement of subsection (1). An order made under subsection (2) should only specify the office or position, and not the individual holding that office at the date of the order.

An order which identifies an individual is effectively made under subsection (1). Any requirement to name the individual holding the office at the date of the appointment would render subsection (2) futile.

An order appointing an office holder as deputy should therefore include a requirement that that the holder at the date of appointment notifies the Public Guardian if they cease to hold that office. The Public Guardian will then be in a position to refer the matter to the court if he considers that appropriate. The PG agreed with this approach.

A review of the indemnity cover and bond arrangement was undertaken and the security bond increased.

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