Case Studies

Jennifer’s Story

Jennifer from Bury, Lancs told us:  “My husband Jack was recently diagnosed with MS and we looked into getting powers of attorney but were told that the only place we could now these done would be through a solicitor and it would cost a fortune. Jack has severe tremors and cannot sign anything, and is also registered blind – so we are stuck and cannot get LPAs for him even if we could afford them!”

FACT: Provided Jack has not lost mental capacity, his blindness and/or physical inability to write does not prevent him from obtaining LPAs. There is a procedure whereby someone else can sign on Jack’s behalf. Nor are they restricted to using a solicitor. Provided the right procedure is followed, they can arrange their own LPAs or use any LPA service they wish.
p.s: Jennifer and Jack both got LPAs they could afford – two LPAs for the price of one! . Moreover, Jack got a 100% exemption from the official Registration fees, and Jennifer a 50% reduction saving them another £330.

Salutary lesson for property owners

Peter has a day job, but also receives rental income from nine BTLs.

He is involved in a car accident leaving him brain damaged.

Subsequently his assets and accounts are ‘frozen’. His wife Julia cannot even access their joint accounts, or the current account receiving his rental income!

Julia’s only option was a very expensive Court of Protection application, which she lost. The Court appointed their own deputy and so a stranger now controls all of Peter’s financial affairs. To make matters worse Julia has no say in Peter’s medical care or treatment.
Upon hearing Peter and Julia’s situation, another property owner said “Thank goodness our BTLs are held in a Ltd Co under Company Law and outside the scope of the Mental Capacity Act“.

His smile disappeared after reading (for the first time) his Ltd Company’s Articles of Association and learns that each director’s personal position is very vulnerable in the event of incapacity.

Solution: Emergency board meeting. Amend Articles of Association clause, and replace with an LPA solution.

PS: Julia got yet another very nasty shock. Her husband’s critical illness payment of £100,000 is paid straight into Peter’s current account … controlled by the Court’s deputy!

The insurance company explained that they had no authority to pay to anyone else other than the assured.

Tip: All life and CIC should be set up to pay into a discretionary trust, out of his estate and his wife’s, but from which she has access.

LPAs ARE NOW WITHOUT DOUBT JUST AS ESSENTIAL AS A WILL!


The following true story in the Police magazine representing the National Association of Retired Police Officers, highlights the real problems of not having an LPA in place.

I wish someone had told me about the importance of having a LPA. I will tell you why it is essential and how it affected me.

My nightmare began when my husband, a retired Chief Inspector in the RUC aged 64 had a DVT in his brain in an aeroplane on the way to visit Australia. When we finally were able to travel home he was admitted into a psycho-geriatric hospital for treatment.

Everything we owned was in joint names, the car, our house, investments and bank accounts. By doing this we thought that we were safe. How wrong we were! I must have been in a state of nerves and anxiety and I have no idea how it happened, but the Court of Protection took over our lives.

I had never heard of it, and when someone telephoned to tell me that all our accounts had been closed and I could no longer write any cheques or draw any money I was horrified! As I said, we thought all was safe money wise, now I had nothing.

Old age pension did not come until my husband was 65 and therefore I got none either. I had a teachers’ pension but that was in the joint account and I had no access to it now.

I was told that I would be given a cheque to pay for my husband’s necessities and nursing home fees and it would be topped up as necessary. I was to send receipts for everything I bought for him.

The cheque came and I was told to open a receiver’s account in my name as receiver for my husband. The bank tellers did not seem to know what to do and after four banks refused to help I went into bank number five in tears. The sympathetic manager, when I explained what was needed, opened the account for me and one hurdle was crossed.

The next problem was to open an account in my own name for my pension to go into, but it takes time and the pension was put into the now Court of Protection account before I could stop it. Another month with no money.

The car was bought with our joint account cheque, I was allowed to keep it and was given free car tax, which helped, but I was told that it was only to be used for the benefit of my husband i.e. hospital visits and shopping for him. I did mine at the same time! It took quite a few months before the cheque for my half of all monies came from the court and life was difficult to say the least in the meantime.

After about 2½ years my husband died. I went to contact my solicitor to tell her of his death and to ask for his will and for the address of the Court of protection that I could tell them too. The solicitor told me that she would do it for me and named her price per hour for the work. By this time, with nursing home fees I was very hard up, so told her that I would do it myself if she would be so kind as to tell me the address of the Court of Protection.

If she looked at me and said … “Mrs Smith, I spent four years learning how to be a solicitor, I give nothing away”.

After I had dried my tears, remember my husband had died that morning, summoned what dignity I could gather and went straight to the Citizens Advice Bureau, where I was given the address and sympathy. It took quite some time for the Court of Protection to settle our affairs and to send me the cheque for the remaining part of the money that had not been used for my husband’s care, but there was no interest given. When I asked for the interest I was told that it had been used for court charges plus an extra £61.

I never knew who they were protecting, it certainly was not my husband, as I did all for him, and it was not me.

So! Please, please, anyone who has not got power of attorney get it and save yourself money and heartbreak. I only wish someone had told me about it sooner. Also, it is a good idea of everyone over the age of 60 to have an account in their own name to fall back on in times of emergency like mine”.

More should be done to highlight the need for LPA’s and the Court of Protection should look to their systems and decide exactly who it is they are protecting!


‘Court of Protection cost me £50,000’
By Fran Abrams BBC File on 4

franNeil Barker has even renovated and sold a house despite a court saying he cannot manage his affairs

Neil Barker has no memories of the 35 days following a horrific motor bike crash which left him with brain injuries and needing his eye socket rebuilt.

Carrying out everyday activities became a struggle. Even a basic task such as buying a tin of beans was a major challenge. His family feared he would never be able to manage his money. And under the Mental Capacity Act, a solicitor from the firm which dealt with his personal injury claims became his deputy – appointed by the Court of Protection to make financial decisions on his behalf.

When he won £1.7m compensation last year, the Court of Protection placed the pay-out in a court-controlled account. I thought it would be nice not to have to worry about money” – Neil Barker

However Neil, from West London, feels the court could have got him a better deal. The IT engineer discovered that a bank where he was fixing a computer could have offered a return eight times more than he received in the court’ s account. “It’s not being invested at all, I get half a percent. I’ve done careful calculations on this and they lost me a minimum of £50,000 in 18 months,” he told BBC File on 4.

Legally, Neil is still not considered capable of managing his money. But he says he has made rapid progress. He renovated a house which he sold for a profit and has now bought another that he is due to move into in two weeks. Neil now wants to get the Court of Protection order removed so he can manage his own finances.

But to do that he needs to get reports from his doctors, and his deputy has refused to release money for the medical checks to be carried out. He said the court would never approve that because he was last assessed by his doctors two years ago and it was unlikely there had been a sufficient improvement in his condition to warrant lifting the order.

“When I regained consciousness it was unlikely I would make a full recovery but I have,” Neil said. But now “I asked my deputy for a review and he told me the court would not give me the money for a review as I would have to see a consultant neurologist or psychologist.

“I always accepted the Court of Protection and could see why it was there. I was happy to have this protection”. “I thought it would be nice not to have to worry about money, that it would be like a bank account with added security.

But I never thought for a minute it would be like this. The Court of Protection doesn’t provide protection.”

Neil’s deputy said he could not be interviewed by the BBC due to issues of client confidentiality and responsibilities to the client and the court.


The Need For A Power of Attorney

Court of Protection – Heather Bateman’s story, part one

heather1Heather Bateman had to run the family finances after an accident left her husband in a coma; and thanks to the Court of Protection, three years of pain and misery followed

I shake as a large white envelope slips through the letterbox. My trembling fingers pull at the flap. I’m a grown woman with a family. I have done nothing wrong yet these letters make me feel like a criminal or a helpless child. The letters are from the Court of Protection.

Never heard of it? Lucky you. I hadn’t heard of it either until the moment when my whole life fell apart. In September 2003 my husband Michael walked across a quiet country road towards me and was hit by a car. He fell to the ground and never stood up or spoke a word again. In hospital he collapsed into a coma. The three-year nightmare began.

As well as experiencing the horror of seeing the energetic man I had loved for more than 30 years rendered immobile and lifeless, I had to deal with the everyday aspects of having a large family of two children, four stepchildren and six step-grandchildren. And I had to deal with the Court of Protection.

Michael and I were two independent working people. We had been married for 28 years. We had written our wills, both our names were on the deeds of the house we shared in London and the Norfolk cottage we had renovated over the years. We had separate bank accounts and most of the bills were paid from Michael’s account. Now, to continue living in the way we always had done, I needed to access the money in his account.

Michael had been moved to the Intensive Care Unit at Addenbrooke’s Hospital in Cambridge. “You need to get the right forms,” the man at the Citizen’s Advice Bureau at the hospital told me. “Where do I get the forms?” I asked. “From a solicitor,” he replied. “There are plenty of solicitors in Cambridge.”

I was in shock. I had witnessed the accident. I had seen the car knock Michael to the ground and I had held his hand and talked to him on the horrendous journey to the hospital. For as long as possible, I put off getting the forms.

The solicitor’s office I chose was Dickensian. The clerk, almost as ancient as the decor, handed me some forms and said, “Fill these in and get your husband to sign here.”

I burst into tears, the first I had shed since the accident. And, once I started crying, I couldn’t stop. The clerk looked at me uncomprehendingly.

“He can’t sign,” I sobbed. “He’s in a coma.”

“Then you need the Court of Protection,” he said. I heard those words for the first time, words that represent an institution everyone should know about.

The Court of Protection brought me almost as much anger, grief and frustration into my life as the accident itself. Over the years that followed Michael’s accident, I had to learn to accept a new reality, to settle into a different way of life. This I did gradually, lovingly, in my own way, feeling my energy and life-force change and keeping the family together.

But parallel to this I had to come to terms with the Court of Protection, an alien, intrusive, time-consuming and costly institution, which was completely out of tune with what we were going through. For almost three years it ruled my waking moments and my many sleepless nights.

Before all this happened we are advised to take out this insurance and that insurance but hardly anybody tells us to take out a Power of Attorney, which enables a person to appoint another to manage their financial affairs when they may be unable to act for themselves. Yet, in a case like ours, this is the only way to avoid the Court of Protection, also known as the Public Guardianship Office.

What is the Court of Protection?

There are 55,000* clients registered with the Court of Protection, all so mentally incapacitated they are considered unable to act on their own behalf with regard to their finances. Because they have not granted Power of Attorney to anyone else, their affairs are placed under the jurisdiction of the court. The court appoints a Receiver to act on the client’s behalf in the everyday running of his or her affairs, and the receiver is answerable to the Court.

I had to apply to become Michael’s Receiver, that is, I had to apply to the court to act on his behalf in carrying out the everyday financial matters of the life we had always lived. To become his Receiver, I had to fill in complicated forms, detailing every aspect of our lives. I also had to give notice to my children and stepchildren of my application. A Receiver can be a close family member or – where there is no suitable relative – a stranger or an organisation, such as a solicitors’ office. But in its treatment of Receivers, the court does not distinguish between a close family member or a virtual stranger.

Who is the court protecting and from whom? As the weeks and months went by it became clear that the Court of Protection’s primary role was to protect my husband from me. I was doing all I could to look after Michael and to keep our lives in some kind of order. The Court was doing everything possible to place itself like a wedge between him and me, in order to protect itself from any accusations of wrongdoing should he ever “wake up”.

To perform this unwanted task, the unwieldy organisation stepped into my life and took away my adult independence. The tone of the letters and the restrictions on how much and in what way our money could be spent undermined my freedom and self-respect. And if I did not do everything I was told to do, I could lose the right to be the Receiver. An unknown person could step in and take over our accounts and the running of our lives.

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Court of Protection – Heather Bateman’s story, part two

heather2Heather Bateman had to run the family finances after an accident left her husband in a coma; and thanks to the Court of Protection, three years of pain and misery followed

Here are just a few examples of how the Court acted under the guise of “protecting” my husband:

On the day the letter arrived confirming I had been appointed as Michael’s Receiver, another letter arrived demanding instant payment of £460; it threw me into a state of shock. Later, I was told this bill should have arrived a month later. However, this was just the first of many fees to be paid to the Court. They include a commencement fee (£240) and an appointment fee (£315), an administration fee (ranging from £190 to £240), an account fee (£100), various transaction fees (ranging from £60 to £540) and a winding-up fee (£290). To deal with the forms and additional accounts, I needed the help of an accountant, whose fees also had to be paid. Over the course of two and a half years, more than £3,000 was used up on administration fees alone to the Court of Protection.

As Michael’s Receiver I now had access to our accounts. But I was dismayed by the restrictions on my spending. I could write as many cheques as necessary up to £500. But if I needed to access more than that at any one time, I had to get permission from the Court – even to pay our daughter’s university fees and accommodation. Similarly, when I needed building work done, I had to submit