Late last night, Christine Hockett replied to my post on the ‘Catch 22′ that is the Court of Protection. Her comment was so articulate, and so perfectly describes the difficulties even an intelligent sane individual has in coping with the byzantine world of bureaucracy that one enters through its portals that I have decided to preserve her comment as a post for future reference.
She also raises the important issue of who benefits, or âfollow the moneyâ.
I had shown the Â£27,000,000 in fees raised by lawyers for just 5,000 of the 30,000 people currently under the court of protection. The other 25,000 people would have garnered another Â£27,500,000 in legal fees (the standard Â£1,100 x 25,000 people). That is just the legal fees allowable to professional Deputies. However, as Christine has shown, the few individuals who are accepted as âFamily Deputiesâ and are thus unpaid, are an additional source of income.
When the new Mental Capacity Act came out, every Receiver who wished to become one of the new fangled âDeputiesâ, whether professional or not, was required to pay Â£522 â a total of Â£15 million, Â£15,660,000.
By the simple expedient of not telling anyone that there was a âfree periodâ to renew this âlicenceâ, they managed to avoid all bar 7,000 people having to pay an additional Â£400 to renew their ability to act of behalf of someone. Thus they are expecting another Â£9,200,000 in fees to swell their coffers.
If you wish to argue against this iniquity â Guess? â Yup, you, or rather the person you are caring for, must pay yet again, Â£400 if you argue by post, Â£500 if you want to see the whites of their eyes whilst you argue your case.
It is a total disgrace.
Here is Christineâs excellent and lucid comment:
âCatch 22â indeed! As a Deputy who was sane when I joined, I am now mad in all senses of the word. In the Radio Programme the opinion of the man at the Citizenâs Advice was that the Mental Capacity Act had been drafted with the needs of the elderly in mind â this has not been my experience with my aged aunt.
I was appointed âReceiverâ for her in 2003. Prior to the implementation of the Mental Capacity Act 2005 I was assured that the âprotectionâ of the Court would be cheaper, however, on implementation of the Act, payment of a further Â£522 was required (Â£122 for an assessment of the case to decide my level of supervision by the Court and Â£400 for a new court order to enable me to continue doing what I had been doing since 2003) so that I could become her âDeputyâ .
My aunt had a property and some savings as she never had children, took a foreign holiday or even drove a car. She did however, have a disability as she became profoundly deaf at the age of 16. She is now old and frail and clearly cannot care for herself following the death of her husband. She is resident in a care home close to where my mother (her sister) lives and is aware that I âdo her businessâ and that a Judge in London checks on what I do, a situation which she finds highly amusing, as she cannot work out why a Judge should be interested in her. I too am happy with this situation and feel that it is right that I should submit accounts for the spending of her money, even though I have the full support of the rest of the family, and my auntâs affairs have never been subject to any âfamily disputeâ. Her home and contents have now been sold and the proceeds lodged in the Court Funds Office so that the interest from this account will help make up the shortfall in her pensions and attendance allowance so that the care fees can be met. Ownership of a property means that she is âself fundingâ for her care as she does not have ânursingâ needs . The care fees are currently Â£30,000 pa room and board only so there is still a shortfall, which is made up from her capital at Court by way of a monthly standing order on the account.
The major problem for me and the family who visit her is that my aunt did not want her home sold, so I have permission from the Court to tell her that she still has it. That is not to say that she is unhappy in the care home, she often says that she likes it, but on those occasions when her back hurts and she feels that she would prefer to be in âher ownâ bed to ease it or she just wants to see her bungalow, we have ready the following lies: âItâs too hot/cold/wet/windy/snowy to travel. The water /electric is switched off. There is no heating oil. The bungalow needs painting. â This is an abuse of all of us.
Financially my auntâs affairs are simple (I thought). Having lodged all her capital in the Special Account at the Court Funds Office, where it was safe, earning 6% and fully accounted for on an annual basis. You would have thought that even the Court would be happy. However, following the implementation of The Mental Capacity Act 2005, I was sent a âRestrictedâ order which permitted me to draw Â£32,000 per year for three years. I believed that the ârestrictionâ was in the amount of money. However last year I received a letter stating that the order was only valid for three years and unless I applied to Court for a new order valid under the Mental Capacity Act 2005, the account at the Supreme Court would be frozen as it would no longer be legal for me to act on her behalf. This was not explained in any of the literature received in the lead up to the implementation of the Act. When I was complained I was told that there was a âfree periodâ in which to apply for this new order. The letters had talked about free applications for extra money â so I did not apply as I did not need any âextraâ. I was also told that as Deputy I should have taken legal advice on any communication that I did not understand.
I have subsequently submitted a Freedom of Information Act application and apparently out of the 29,000+ patients some 7,000 applications were granted during this âfree periodâ. A further application worded to ascertain how many of these applications were for âunrestrictedâ orders for Deputies formerly known as Receivers, has not received any reply, except to say that not all of the original orders were ârestrictedâ.
The application for the new order cost Â£400 and when I hand delivered the application to ensure its receipt and get it into the system quickly, a cheery Court admin officer told me that I should tell the care provider that he may have to wait for his care fees if the account was frozen as there was a backlog delaying applications. I explained that my auntâs care provider would not be waiting for his care fees from her own money and fortunately I received my order before the date the account was due to be frozen. Since receipt of the new order granting me permission to continue to act on behalf of my aunt I have been fighting to get the Â£400 back for her. She came under the âprotectionâ of the Court in 2003 and paid for me to act for her at that time.
Since the new Act all decisions are made by a Judge at a cost of Â£400 per hearing, attended hearings will cost Â£500. Matters that were formerly decided by a letter to a case worker are now subject to legal proceedings that are only proper for contentious matters. Thus the Court is now as much a victim of this as those who pay and wait for the backlog to be cleared.
Her capital was placed into the âSpecial Accountâ at the Supreme Court where it earned 6% interest. In June last year this rate dropped to 0.5%. My new order (Â£400) is an âunrestrictedâ order which allows me access to all of her capital instead of just the Â£1400 per month needed to âtop upâ her care fees. My two problems here are:
Firstly given the current economic situation, what do you do with this capital? I have decided not to split it and put it into one year bank bonds, but left it in the âsafe havenâ of the Court Funds Office where it is 100% guaranteed but earns 0.5% when any high street bank would pay more, but will not guarantee any deposit over Â£50,000.
Secondly access to all of her money means that the indemnity bond that she has to pay so that an insurance company will refund any losses should I âmake offâ with it, has gone up to Â£375 per year rather than the Â£25 it was when I did not have access to all of the capital.
My aunt will not recover from old age and frailty, her savings and home are committed to her care, it is now unfortunate that any day to day decision will cost her further money from this capital â if I want to ask the court to review the level of the indemnity bond (common sense) as I will be leaving the money in the Court Funds Office, that will mean an application to Court which will cost Â£400. There is also an annual account fee levied by the Office of the Public Guardian which is Â£175. She is also taxed on the interest earned from the sale of her home and contents which does not fully meet her care fees. These charges are ongoing.
I had hoped that the promised review of âCourt Rulesâ would direct the Court to become a more âpastoralâ and advisory organisation, offering guidance and help to Deputies on ways in which to protect the capital of their clientâs to ensure that it is sufficient for their needs. A small return for what the patient is required to pay for this âprotectionâ. The Court of Protection, The Office of the Public Guardian and The Court Funds Office are three separate organisations who are not connected but to whom I have a responsibility â I have been sent round in circles by them as they will all deny jurisdiction or primacy. They claim to provide protection yet charge dearly, will offer no guidance as everything is the responsibility of the Deputy, until you try to act and then you will be charged Â£400 for a Court application, which may be refused. The website of the Ministry of Justice proudly trumpets that they are moving towards a âJustice Serviceâ rather than a âJustice Systemâ. This Justice Service requires that someone pay for Court time . Likewise the Office of the Public Guardian is deemed to be self funding as âthe patient will payâ. The Court is also not open to applicants to attend unless you pay. Fee remission is possible if the annual income is less than Â£16,500 â a totally unrealistic level given that people like my aunt require a minimum of Â£30,000 to pay for room and board. The annual accounts and indemnity bond are the safeguards employed by the Court, along with Lord Chancellorâs Visitors to ensure the protection of the patient, but the cost of providing this for the few when there are laws that should be used to punish those who abuse the patients now should be urgently reviewed.
Dickens describes it perfectly in Bleak House:
This is the Court of Chancery, which has its decaying houses and its blighted lands in every shire, which has its worn-out lunatic in every madhouse and its dead in every churchyard, which has its ruined suitor with his slipshod heels and threadbare dress borrowing and begging through the round of every manâs acquaintance, which gives to monied might the means abundantly of wearying out the right, which so exhausts finances, patience, courage, hope, so overthrows the brain and breaks the heart, that there is not an honourable man among its practitioners who would not giveâwho does not often giveâthe warning, âSuffer any wrong that can be done you rather than come here!â