Sheree Green recently wrote the following article for The Association of Lifetime Lawyers. The full article can be found here.
Family members do not always realise how challenging it can be – taking on the role of property and affairs deputy for their relative.
John had looked after his daughter Emily’s finances as deputy for over a decade when the Office of the Public Guardian (OPG), having scrutinised his OPG102 return, identified that John had been paying himself a “family care payment” (also known as gratuitous care) from Emily’s funds. They insisted John make an application to the Court of Protection (COP), seeking specific and retrospective authority for these payments, which were in breach of his fiduciary duty as deputy.
John asked for help from a solicitor, and work on the application commenced.
It then transpired that John had never received any money at all from Emily. The confusion was down to a clerical error; an entry in the wrong column in the OPG102. Surely an application to the Court was now unnecessary?
John had given up work to move in with Emily to provide 24/7 care for her. He did not pay Emily any rent. The OPG maintained that living in Emily’s house rent-free was either a payment in lieu of the care he provided and as such would need the COP approval, or created a conflict of interest with John in breach of his fiduciary duty, as he is benefitting from his situation by not paying rent.
John was confused and frustrated. He had dedicated his life to Emily, and his care and support was saving her the considerable cost of live in care.
It was then that John’s solicitor realised that they had been looking at this problem through “the wrong end of the telescope”.
Instead of being rushed into an application, we needed to go back to the beginning and the first principle of the Mental Capacity Act 2005 (“MCA”):
“A person must be assumed to have capacity unless it is established that he lacks capacity.”
Did Emily have capacity to agree to her father living in her home without paying rent?
A formal and detailed assessment confirmed that she did. This was Emily’s decision to make, not her father’s, and Emily was very happy with the arrangement. Most importantly, Emily felt empowered by taking responsibility for this decision herself.
The OPG accepted that no application to the COP was needed and an invaluable lesson had been learned – or relearned – the importance of always starting at the beginning, looking through the right end of the telescope. We have to remember that the MCA is designed as an empowering as well as protective piece of legislation.
