Court of Protection – Part 1
The Court of Protection is the Court that has jurisdiction over people who lack capacity. If during proceedings it is established that they do have capacity, then the proceedings are terminated, due to the lack of jurisdiction. By definition therefore the people that they are making rulings about are vulnerable. Some things that they do are simply to authorise what everyone is in agreement about, but not always. Some of their decisions are incredibly tough decisions in situations where there is no right answer, just a least worse one. That is more to do with the circumstances in which people find themselves than the decisions of the Court.
The Court also only has jurisdiction over people who are living, if they have passed away, they are no longer around to make a decision about. However after death, the Court still retains jurisdiction over the bond that will have been put in place for deputy matters (where the Court has appointed someone to act on behalf of the person lacking capacity). The Court will appoint a deputy if there is no attorney to act by the time the person loses capacity. From the functional perspective the powers are fairly similar, but the deputyship is supervised by the Office of the Public Guardian (OPG), whilst an attorney can be investigated by the OPG, they are not routinely done so, unless a referral for investigation is made. Supervision cost money, so LPAs are usually much cheaper, as well as giving choice to the donor.
So I thought that I would do a run through of some of their recent decisions and I’ll start this series with a case known as “Re E”. Cases are almost always anonymised, as the people involved lack capacity and are entitled to confidentiality. There was a case a couple of years ago where a decision was made after the person had died (about the bond) and the Court chose to “name and shame” the relatives of that person, so very unusually it wasn’t anonymised.
So what happened in Re E? She was a lady with early stage dementia and she made an LPA for health & welfare (and separately finance as well) and on the same day made a Living Will (her wishes as to her treatment for end of life & choice proxy). She appointed her husband as first proxy and her former carer as substitute. For finance she appointed her husband and former carer as attorneys and her child as substitute attorney. Her husband and the carer became close, which had a detrimental effect on the relationship of the husbands and his children. The husband then died and the situation became tricky. The children claimed that the carer had physically, emotionally and financially abused both E and her husband, so they applied to the Court to have the carer and E’s child removed as attorney. The application was probably negotiated, so the attorneys agreed to renounce and the carer agreed to renounce her appointment under the Living Will as healthcare proxy. This left E with no-one acting for her, so she was effectively disempowered from asserting her choice/s.
So what did the Court do? For technical legal reasons, the LPA wasn’t “created” until it was registered at the OPG and as that happened after the signing of the Living Will, it revoked the Living Will, so E had nothing (no attorneys & no Living Will) and her choices were lost. Rather than let that happen the Court decided that “The advance decisions made by E in the Living Will and set out in the Schedule to this declaration continue to exist and to be valid and to be applicable to her treatment”, which translated into English means that they resuscitated the Living Will in order to protect her choices.