The Court of Protection is the part of the Court which is designated with the task of looking after the affairs of people without capacity. This means that it makes decisions on all sorts of matters ranging from the question of whether or not a person has the capacity to enter into a marriage or investigating the conduct of someone who is looking after another person’s financial affairs. It is this latter function that will be discussed in this article.
As you may be aware, it is possible to appoint someone to act on your behalf in relation to your property and financial affairs and that person is called your Attorney. Alternatively, if you have not appointed an Attorney, if you then lost the capacity to do so the Court could appoint someone to look after your affairs and that person would be called your Deputy. It can be useful, and in some cases essential, to have help with your affairs, but unfortunately the powers that have been granted can occasionally be misused.
Under the terms of a Power of Attorney or Deputyship appointment, your Attorney or Deputy would probably have the ability to make gifts on your behalf on customary occasions such as birthdays and Christmases. Those gifts must be reasonable having regard to the amount of money which you have. However, trouble can arise where the Attorney or Deputy goes beyond their powers and makes considerable gifts either in favour of themselves or someone else.
An Attorney or a Deputy is in a position of trust and is required to put your best interests before their own. When this does not happen, and the Attorney or Deputy takes advantage of the position that they are in, the Court can be asked to investigate matters. If, as in the case of Re GM (May 2013), the Court believes that the Deputy (or Attorney) has exceeded his or her authority to make gifts or pay for expenses, then it will order that those gifts and payments were unauthorised and should be repaid. In that case the Deputies had purchased themselves designer watches, handbags and jewellery with their Great-Aunt’s funds as well as gifting themselves and others significant cash sums.
If you or someone you know has concerns about how someone is looking after the affairs of another then we may be able to help. The Court of Protection’s main aim is to look after the best interests of those without capacity, but sometimes it has to rely on those around that person noticing that something is not quite right.
If you wish to discuss any of the matters raised in this article then please do not hesitate to contact Emma Northover.