Sunday, 25 October 2009

Do they think we’re all mad?

Staying in one room on your own for a long time can have a peculiar effect on one’s mind. Those effects could even be permanent and I could end up turning into a mental vegetable (stop sniggering at the back!) unable to manage my own affairs and finances. Mind you, there’s fat chance of me having an affair in this place.

Fortunately for people who do go a bit do-lally, the Government is ready to come to the rescue. It will decide who looks after your money and what you spend it on while it judges who is competent to look after you and your assets.

I remember coming across something a bit like this some years ago when my father was taken ill in Germany and we had to fill out some court papers basically turning my father and his belongings over to the Federal Government who would then take decisions on his behalf. I thought it was a bit odd at the time but this was Germany and they do have their own special ways of dotting i’s and crossing t’s.

Well it looks like this ‘efficiency’ has now crossed the North Sea and you now have to do the same thing here if a parent or other close family member becomes mentally or physically deficient and are unable to conduct their own affairs.

If you have someone who needs their affairs taking care of, you now have to apply to the Court of Protection. The court conducts its business in secret and in the two years since it’s been running it has taken control of £3.2 billion of assets. What’s more, it charges for the privilege of doing this. If you wish to be trusted to do the job yourself then you must fill out a 50-page form and then allow yourself to be vetted by a team of civil servants based in Birmingham. These chappies go under the name of the Office of the Public Guardian. There are 300 of them beavering away at a cost of £26 million a year. They have the power to freeze assets or even raid homes for documents.

Now there’s no denying that there are some unscrupulous types who may try to bamboozle some poor sufferer of Alzheimers out of their money or get them to change their will, but surely their must be a better way of dealing with this problem instead of treating all husbands, wives and children as wicked gold diggers?

Well, fortunately there is a way but it will cost you. If you take out an enduring power of attorney (a bit pricey but worth having) or register a living will, then those nosey parkers will have to keep their invasive little snouts out of your family’s business.

So tomorrow I’m summoning a solicitor to come to my bedside so I can make my own living will. No sniveling little pen-pushing bureaucrat’s going to get their sticky little hands on my £100 of Premium Bonds or my lucky lottery numbers!


  1. Look its in your best interest.If aunt fanny go,s a little loopy before she pops her clogs.The last thing you want to be worried over is capital gains.

  2. Power of attorney works every time. Not as expensive as you might think, either. Depends upon the solicitor you use.

    Better than bureaucrats. You could end up losing all your families assets with them around.

  3. Good afternoon TM

    Well - better send your chappie over this way -we have won on the lottery this weekend £6.10 - what shall we do with the profit of the grand sum of 10p I wonder????

    Best wishes and keep hanging in there (well so to speak as you do not have a choice).......

    Oh - rather dull Sunday here - husband watching much Moto GP and now Football - hey, at least I have the delights of Come Dine with Me followed by the excellent Hugh Lawrie in House later (plus a sneaky little glass of Sauvignon Blanc for no particular reason).

    Cats' Mother and the Chelsea Gang xx
    (My 3 cats in huge trouble for acting like rock stars and trashing the spare room which I had just done for visit from brother in law this week - luckily double glazing so the TV did not end up in the street below).

  4. The totally gratuitous mention of wine is both hurtful and cruel. I'm now dreaming of a lovely blackcurranty shiraz.

    My cat is being very naughty in my absence and has taken to sleeping on my pillow which he knows is an absolute no no! I'm afraid discipline has slackened in my absence and I'm going to have a lot of work to do to get him back into line.

  5. Getting a cat back into line? Good luck! My cats get shut into the kitchen at night but then teenage son lets them out when he staggers down for a glass of milk, Fanta or whatever. Ferocious door-scratching ensues, usually ending up with three cats on bed including at least one on chest/pillow/face prompting nightmares. And the 18-year old cat wanting a cup of tea at 6am yes really, preferably with sugar. No wonder she has no teeth left to speak of). Love them though.... I'm sure you will when you finally get back home!


    Hard to separate out how much of this mess is:

    (a) A matter of 'careful what you wish for'

    (b) 'The law of unintended consequences' - related to yet different from (a)

    (c) 'Don't say we didn't warn you' - 'cos we did

    (d) 'If you fail to plan, you plan to fail' - again not quite the same as (c) but close enough

    There's a fascinating piece by Richard Alleyne in the on-line Telegraph today highlighting some of the problems. Fascinating in that, in the first sentence, it not only contains two major errors of legal fact, but also fails to mention the single most significant change to English and Welsh law created by the Mental Capacity Act and the one that is centrally causal to this whole sorry mess. No offence to our esteemed host, but that is going some even for a journalist.

    The Court of Protection was not 'set up' by Jack Straw to deal with the management of people's affairs when they couldn't do it themselves. It had been doing that for decades, as part of the Supreme Court, under powers granted by the Mental Health Act 1983.

    It chuntered on merrily - or not, it could often be slow and cumbersome - for years, mostly rubber-stamping the decisions of lawyers and public officials for managing only tangible assets using - where asked to - someone called the 'Receiver' with strictly limited powers.

    Any other decision regarding the health and well-being of a mentally incapacitated adult needing a legal judgement went to the relevant High Court or Family Court. Matters of sometimes heart-rending moral and legal complexity such as if and when to turn off the life-support machine of someone in a PVS. That sort of thing. Tough stuff and utterly above and beyond the doings of the old CoP.

    Prior to the MCA and the creation of the authority of 'Lasting Power of Attorney', there was the ordinary 'Power of Attorney' together with the 'Enduring Power of Attorney'. The former supposedly ceased to have any authority to act if the person lost capacity (though in practice this was often ignored or overlooked - not always with good consequences), whilst the latter again could only deal with tangible assets.

    But now under the MCA, the new Lasting Power of Attorney can be given - by the person - power and authority to taken decisions on the person's behalf about their health and welfare as well as their cash - up to and including matters such as the ending of life. Now that is big and scary.

    So the Guvment decided it had better rethink and reconstitute the CoP as now a 'Court of Superior Record' (i.e. it can create legal precedent in its judgements) and to lash it with other powers such as the establishment of 'Deputies' of the CoP, they to be administered and supervised by the reconfigured Office of the Public Guardian, replacing the dusty old Public Guardian Office. (The PGO used to just be the administrative arm of the old CoP - essentially paying the bills for anyone who had a Court-appointed Receiver.)

    The new PGO - complete with a new and powerful champion of the people, the 'Public Guardian' himself - now not only administers, but it also manages and supervises both the new LPAs (with - where granted by the person - their powers of life and death) and the Deputies of the CoP - who can be a family member or relative if and only if the CoP decides that is the best way to go.

    So the OPG can be required to keep tabs on LPAs who have the power of life and death - that is no small cheese.

    And it is no longer merely a dour little bureaucracy just carrying out CoP instructions about cash, under the governance of a senior civil servant - bleak enough as that prospect is - it is now a separate and a mighty machine, led by a great champion (the Public Guardian) who is appointed by the Lord Chancellor no less. (If you know your public sector, you'll know that was a bad, bad idea!)

  7. This is all very well in theory and had a clear aim to protect vulnerable people. But surprise, surprise the Guvment has spawned a monster.

    It was, in effect, a bit like saying to some old duffer who's been semi-successfully running the school egg-and-spoon race for years: "Henry old fellow, you seem to be making a reasonable fist of this sports' day malarkey, so how about we put you in charge of the 2012 Olympics?"

    Was either the CoP or the new OPG properly resourced, skilled and ready to take on its new roles and functions when asked? No.

    Did people warn this to be so, resulting in a prolonged delay to starting? Yes.

    Did the Guvment continue to fail to invest sufficient time and resources in order to make the CoP/OPG fit for purpose? Yes.

    Did the Guvment then insist that the new CoP and OPG get cracking despite being told long and loud that it still wasn't ready? Oh, yes indeed.

    Did anyone predict its full workload from the outset, a workload so cumbersome that it would be bound to crack and crumble? Not even the most pessimistic of forecasters predicted just how bad that would be.

  8. Is, above all, now everyone within the CoP and the PGO totally risk averse, deeply fretful that if they fail to execute in full their legal powers then they themselves could cop it as legally liable - not least under section 44 of the MCA that makes this a criminal not just a civil offence? Well, yes of course.

    And it's not just them running slightly scared. Richard Alleyne quotes a woman who was forced to turn to the CoP/OPG monster when her husband - who held the family bank account - fell into a coma. In the old days when there was some humanity in the ordering of our lives, she would have been able to go to her Bank manager - who would know her as she him/her. The Bank manager would go out of their way to ease the horror of the situation, bending, where necessary, the rules in order not to cause more grief. (OK an idealised picture but probably not far from the common truth.)

    But now she has to deal with a call-centre and with automatons who have rules that govern all behaviour. There will be scripts, and at the first mention of 'mental incapacity' that presses the button marked 'refer to Court of Protection, don't expect us to risk breaking the law'.

    So, sadly, it is not a question of side-stepping the machine by asking a Mrs TM or a chum to act on your behalf. No sooner that done than they too come under the full and baleful scrutiny of the OPG, with whom they have to register in advance.

    Many’s the solicitor, indeed, who is presently politely declining when asked to be an LPA. They know how bad the law can be, of course, and if they don't like what's happening then you can take it from them it's a stinker.

  9. This sounds even worse than I first thought. What's the best thing to do to stop these people taking over? Apart from moving countries.

  10. I took the precaution of setting up an enduring Power of Attorney as soon as I heard about this coming in. The solicitor did ask if I fully trusted my son and I do in the event I was unable to manage my own affairs. He, and my grandchildren, will inherit everything anyway. In the event that I was unable to manage I wouldn't want to live and they might as well enjoy what is quite a large estate.

  11. Sounds to me like you did the right thing. Unfortunately not all families can be trusted. I know a family where one of the sons made off with every penny his elderly parents loaned him to set up a business. He won't even talk to them now. They say blood is thicker than water but that's not always true. Money can tear families apart. I'm very pleased you have children you know you can trust.

  12. My totally informal suggestion is to make sure that husband and wife - or whatever combo floats your boat - have all assets in a 'joint and several' account, so that if the one falls mentally incapable then the other can continue to manage the domestic menage.

    If then you do have some secret off-shore fund that only you know about, then perhaps the time to 'fess up and claim it was just for a special anniversary treat!

    As for putting your life in someone else's hands, well that has to be a matter of total trust. That is either there or it isn't. Remember though that you can only instruct an LPA what shouldn't happen not what should.

    You can instruct an LPA to have your life-support turned off, but you cannot give any legal authority to insist that it stays on.