Trainee solicitor Rachel Duxbury with the latest cases and articles

30 May 2017

COURT OF PROTECTION – CASES AND ARTICLES APRIL 2017

 Newcastle-upon-Tyne City Council v TP (Best Interests of TP No. 1) [2016] EWCOP B3

After concluding that the Patient (‘P’) lacked capacity, the Court was called upon to consider the issue of whether it would be in P’s best interest to continue living with the person (‘TP’) who had been found to be exploiting her.

The Court ruled that P should not return to live with TP in the short-term but that the situation would be kept under review. In reaching its decision, the Court upheld the allegations made by the local authority, namely that TP had exerted complete control over P and had influence her to discontinue her previous relationships. The Court also found that TP had financially exploited P.

In reaching its decision, the Court was required to balance the wishes and feelings with P with the need to protect P from financial and emotional abuse. In the end, the Court conceded that P’s feelings and wishes to remain living with TP were outweighed by the need to protect her from harm, and that although wishes and feelings may be a significant factor they are by no means determinative.

http://www.courtofprotectionhub.uk/news/new-case-alert-newcastle-upon-tyne-city-council-v-tp-best-interests-of-tp-no-1-2016-ewcop-b3

 Re SL [2017] EW COP5

This is a case which highlights the principle that the issue of capacity is both time and issue specific.

The Court had to consider whether a Patient, who lacked capacity to make decisions about her care, treatment and where she should live, also lacked capacity to conduct litigation proceedings.

The Patient resided in supported living accommodation following concerns of self-neglect after being diagnosed with schizophrenia and obsessive compulsive disorder. She was persistent in her wish to return home and so an application was made by the Local Authority to authorise her deprivation of liberty.

Expert evidence was subsequently obtained, however, whilst the report concluded that the Patient did have capacity to make decisions about her care, residence and medication, it did not definitely conclude that lacked capacity to conduct the litigation. The Court was therefore called upon to consider this issue.

Although the Court was satisfied that the Patient broadly understood the information relevant to the proceedings, it was not satisfied that she could give instructions on matters integral to the litigation and it therefore ruled that she lacked capacity to conduct the litigation proceedings.

http://www.courtofprotectionhub.uk/news/re-sl-2017-ewcop-5

 

White v Philips [2017] EWHC (Ch) 386 HHJ

This case concerned a rather unusual challenge to a Will.

The Claimant’s late husband had passed away from terminal cancer and upon his death, the Claimant sought an Order to challenge his Will on the grounds that it had been drawn up whilst he was taking strong medication.

The Will made provision that the deceased’s share of the former matrimonial home would be held on trust for his daughter from a previous marriage. The home had originally been purchased in joint names and at the time the Will was made, the deceased severed the joint tenancy,

The Claimant sought to argue that the deceased had been suffering from “drug induced delusions” which caused him to believe that his wife, the Claimant, had turned against him. As a result, the deceased had cut off all contact with the Claimant and social services had also become involved in the matter. The Claimant had denied any wrongdoing.

Upon considering the evidence, the Court ruled in favour of the Will and concluded that the deceased had been clear about his intentions in making the Will and had known and approved of its contents. It refused to accept that the deceased’s beliefs, whether right or wrong, had been brought on by “insane delusions”.

 Law Society Issues Guidance on Access and Disclosure of an Incapacitated Person’s Will

The Law Society has recently issued guidance for solicitors who receive a request from a financial affairs attorney or deputy to access the Will of a person who has lost mental capacity. The guidance has been issued in conjunction with numerous organisations, including, the Court of Protection, the SRA, the OPG, STEP and the Legal Services Ombudsman.

Amongst other things, the guidance states that if the client gives instructions not to disclose their Will prior to their death, the Solicitor must not disclose the Will without obtaining a Court Order. If, however, the solicitor believes that disclosure is not in the client’s best interests, the solicitor must apply to vary the order by submitting a witness statement to the Court of Protection.

In addition, the guidance seeks to remind attorneys and deputies that obtaining a copy of the client’s Will is a best interests decision and they should endeavour, as far as possible, to let the client know that they intend to make such a request. There is also advice for solicitors on what to do if they suspect that an attorney or deputy is in breach of their duty to act in the client’s best interests.

Whilst the guidance is intended to assist solicitors and speed up the process of accessing a client’s Will, it is clear the need to protect and safeguard the client’s best interests is very much at the heart of it.

http://www.lawsociety.org.uk/support-services/advice/practice-notes/access-and-disclosure-of-an-incapacitated-persons-will/