A network of more than a thousand legal specialists committed to providing independent expert advice to older people and their carers is warning that negative media coverage of the recently re-organised Court of Protection may be adding to the already stressful process of dealing with the money and property of a loved one in the event of mental illness, accidents or dementia.
Recent media criticism claimed that a "secret court" could seize the assets of elderly and the mentally impaired and turn their lives over to the state, against the wishes of relatives. It has been alleged the Court of Protection, working with the Office of the Public Guardian, has mismanaged £2.7 billion it controls on behalf of vulnerable people.
Claire Johnson, Head of Wills and Estates at Cardiff-based Leo Abse & Cohen and member of 'Solicitors for the Elderly' said "The Court of Protection plays a central role in protecting the vulnerable from financial abuse.
"It has to play a careful balancing act between protecting the vulnerable and respecting the views of their loved ones and relations. Clearly there have been some teething problems since the new Court has been in place and Solicitors for the Elderly together with other professional bodies have been sharing the concerns of individuals and working to help resolve these issues. In most cases, the Court will ultimately agree to appoint a close relative as 'Deputy' for the person who lacks capacity and give the Deputy wide powers to get on with managing the affected person's property and affairs.
"But families can and should avoid this problem altogether simply by drawing up a lasting power of attorney. Most importantly, this avoids the property and finances of a person who suddenly lacks capacity being frozen whilst the Court process to appoint a Deputy takes its course. Otherwise the significant delay involved in an application to the Court can lead to hardship and even financial loss for the individuals and their families at an already difficult and distressing time.
More than half of adults have not discussed the issue with older relatives, according to the Equity Release Solicitors' Alliance. There are more than 700,000 people with dementia and yet only around 8,000 lasting power of attorneys are registered each month.
This is not just an issue for older people. Putting in place a lasting power of attorney is an insurance policy in case of a serious accident at any age leading to loss of mental capacity. It means you can choose who you would want to manage your finances and any compensation award rather than your family having the added distress of losing control of these matters.
"I usually discuss the benefits of a lasting power of attorney when I sit down with clients who are looking to set up a will. Many people have never heard of them, but once I've explained the benefits, they see the sense of putting one in place," Ms Johnson said.
"We can also offer help and support to those who are already subject to the Court of Protection. Being a Deputy and having to report to the Court can be daunting and a lot to take on board, often on top of the practical challenges of physically caring for a loved one who has lost mental capacity.
"Solicitors specialising in this area can provide support and guidance and may actually save money for example by ensuring all appropriate state benefits are claimed and tax matters dealt with efficiently. Contrary to the recent negative press reports, monies don't have to sit in the court fund earning very little interest and a Deputy should be taking advice from a suitably qualified financial adviser on how best to invest the monies for the benefit of the person for whom they are acting. For large personal injury awards it may even be possible to persuade the Court to agree to an externally managed trust so that the Court can be left behind altogether."
Leo Abse & Cohen has offices in Bristol, Cardiff, Swansea, Newport, Swindon, Taunton and Exeter. As well as wills and estates, the law firm specialises in trade union, personal injury, medical negligence, compensation protection, family matters, business services and employment rights at work.