Court of protection disputes
A recent case, fully reported here – http://www.bailii.org/ew/cases/EWCOP/2016/12.html demonstrates the complex and difficult role of a Court of Protection Deputy.
In particular, the case provides useful insight into the approach of the courts where :-
• There is sufficient mental incapacity sufficient for the Court to have appointed a Deputy but where the person still has the ability to communicate certain wishes.
• A close family member is the Deputy and may or may not be able to be objective in the way someone not related might.
The case related to a 74 year old lady with dementia. In addition to her dementia she had certain physical issues such as diabetes but which had been largely manageable by visits from health workers to her home.
She had been living at her home for many years and had clearly, despite her worsening dementia, expressed a clear wish to stay at home rather than go into a Care Home. This desire to stay at her home was very strongly supported by her son, who had been appointed as Deputy.
In the event, after arguments him and the Local Authority, who were paying for the lady’s car, she had been moved to a Care Home.
The reported case deals with an application by the son to change this status quo back to his mother living at home. He also applied to have an injunction against him removed, which had arisen because of his hostile behaviour consequent upon his mother having been moved to the Care Home in the first place.
Case outcome and useful pointers on mental capacity and care disputes
On the evidence the Judge decided that the elderly lady had settled well in the Care Home, seemed to be happier there, had stopped talking about going home and her physical health was good. The Judge continued to fully take on board the borderline nature of the case and the desirability to keep someone in their longstanding home with independence wherever possible.
The son had altered his behaviour for the better after the injunction order. Whilst still believing that it was better for his mother to go home and pushing for this in his legal role as her Deputy, he now had a far more constructive approach.
Factors taken into account by the Judge, in line with Section 4 of the Mental Capacity Act 2005, included :-
(a) The mentally impaired person’s needs and best interests including her age or appearance
(b) the Deputy’s (son’s) conduct
(d) Autonomy issues
(e) All the relevant circumstances
(f) The views of those involved in caring for the person on a day to day basis and anyone appointed as Attorney or Deputy
(g) So far as possible the views of the incapacitated person if they are communicated.
(h) the incapacitated person’s past and present wishes and feelings.
The case is of interest because it demonstrates :-
1. That issues involving mentally incapacitated person where there is deputy in place can remain complex where the person still has some mental capacity.
2. There can be other parties involved in cases were a Court Deputy has been appointed. It is not unusual for a Local Authority to disagree with an appointed Deputy and even to take or defend court action.
3. The legal position with Court Of Protection cases can be complex – the facts can be complex and difficult and the laws involved may include Human Rights law as well as the Mental Capacity Act 2005.
For legal advice on a dispute over care of a relative who has mental incapacity or other needs, please do get in touch. Our main page on the Court of Protection may also assist.
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