A fine line

Over the past 18 months, many reported cases in the Court of Protection (CoP) have focused on individual autonomy and supported risk-taking. However, this growing body of case law can often seem to conflict with a deputy’s duties to protect P from abuse, exploitation and incapacitated decision-making.

This article explores what practical steps you can take as a professional deputy to protect P from financial abuse and reckless spending, while ensuring that your duties as a professional deputy are not breached.

Legal background

Principles 2 and 3 of the Mental Capacity Act 2005 (MCA 2005) state:

• ‘A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success’ (section 1(3))
• ‘A person is not to be treated as unable to make a decision merely because he makes an unwise decision’ (section 1(4)).

The Mental Capacity Act Code of Practice provides essential practical guidance supporting the above. Chapter 3 sets out clear practice points that a person attempting to assess capacity should follow to try to enhance and support P’s capacity – for example, assessing capacity at a time of day and in a location that P is happy with, or arranging for P to attend a course to educate them in respect of the issue in hand. Chapter 4, particularly at paragraph 4.49, sets out further practical guidance on enhancing capacity.

It is generally principle 3 that causes most consternation to mental capacity professionals. The key question that we grapple with on an almost daily basis is ‘at what point does an unwise decision cross over into the realm of being an incapable one?’.

Crossing the threshold

Paragraph 2.11 of the Code of Practice outlines a number of trigger points which indicate that a person may have crossed the threshold from capacitated unwise decision-making to incapacitated expressions of opinion. One of these triggers is where ‘somebody repeatedly makes unwise decisions that put them at significant risk of harm or exploitation’ or ‘makes a particular unwise decision that is obviously irrational or out of character’. Other factors such as the influence of others, a recent medical downturn, stressful life events, or a lack of information must also be taken into account in weighing up P’s decision-making ability. It may be that P will be able to make the decision if the decision itself is reduced in scope (practical examples of this are given later). However, any restrictions that a professional places on P in order to support and enable them to make a decision, or protect them from certain consequences of a decision made by P or the deputy, must be as unrestrictive as possible of P’s rights or freedoms (principle 5, section 1(6) of the MCA 2005).

The recent string of cases addressing professionals making decisions about capacity very much leans towards the promotion of autonomy for P, and the taking of measured risks.

The distinction between capacity and incapacity can be almost impossible to identify, particularly in the case of a young brain-injured person with fluctuating, or improving, capacity, and in cases where P has a deteriorating condition. However, the consequences of misidentifying capacity are stark for both P and the professional making the decision. If a person is deemed to lack capacity to make the decision, then the best-interests principle must be applied, and even on the most liberal reading of section 4 of the MCA 2005, best-interests decision-making does not simply follow the expressed wishes and feelings of P (A-MV v Finland [2017] ECHR 273). But despite this, when making a best-interests decision for another person, we must also keep in mind the powerful judgment of Mr Justice Peter Jackson in Wye Valley NHS Trust v Mr B [2015] EWCOP 60, where he stated: ‘I do not find it helpful to see the person as if he were a person in good health who has been afflicted by illness. It is more real and more respectful to recognise him for who he is: a person with his own intrinsic beliefs and values. It is no more meaningful to think of Mr B without his illnesses and idiosyncratic beliefs than it is to speak of an unmusical Mozart’ (paragraph 13).

This confirms that while best-interests decision-making is not simply a case of following the expressed incapacitated wishes and feelings of P, their expressed wishes and feelings and the manner in which they have reached them may be of strong persuasive quality to the decision-maker. The weight to be applied depends on the specific circumstances of the case, and is a judgement for the decision-maker to apply (M v Mrs N and ors [2015] EWCOP 76).

Requirements of the professional deputy

The Office of the Public Guardian (OPG) expects professional deputies to ‘ensure capacity assessments in respect of specific decisions have been carried out when receiving the case and as future decisions are required’ (standard 2(1)). This must be regularly reviewed, particularly in respect of P’s ability to handle money (standard 2(6)).

Dovetailing with these is the requirement to ‘actively demonstrate protection of the client from exploitation or financial abuse’ and, where P lacks capacity in respect of a particular question, to ‘discuss and record the client’s feelings, wishes, beliefs and interests, both past and present, with the client, their family and care providers’ (standards 2(7) and 2(3) respectively). These requirements are in addition to the set of standards at 1(a)(1)-(8) to investigate, ascertain and protect P’s assets, investments and benefits, and meet any liabilities. The standards unwittingly but perfectly articulate the difficulties faced by the professional deputy: they are required to investigate, protect and safeguard P’s assets, ensuring that P’s capacity is assessed for each decision and their autonomy is not compromised, evidencing that they have acted in line with P’s best interests where they lack capacity, all while trying to ensure that costs are kept to a minimum for P.

The recent string of cases addressing professionals making decisions about capacity very much leans towards the promotion of autonomy for P, and the taking of measured risks. In WBC v Z and others [2016] EWCOP 4, a local authority brought proceedings in the CoP for the court to make declarations as to P’s ability to make decisions about where to live, what care to receive and what contact to have with others. P had been engaging in risky behaviour, and there were genuine concerns about sexual exploitation. However, Mr Justice Cobb stated, at paragraph 70: ‘I am conscious that Z is a vulnerable young person who deserves to have, and should be persuaded to receive, support from adult social services going forward. It is tempting for the court to take a paternalistic, perhaps overly risk-averse, approach to Z’s future; but this would be unprincipled and wrong.’

The court made a finding of capacity, and did not criticise the local authority for bringing the action. However, the court did emphasise the need to provide training and support to P to ensure that their capacity is maximised, and also to regularly review mental capacity assessments. This emphasis on regular capacity assessments, respect for autonomy and, potentially, supporting decisions that do not reflect what the court would consider would be the correct course of action is reflected in the decision of Mr Justice Hayden in M v Mrs N & others (see above). In this matter, the court stated at paragraph 30 that in the event that P lacks capacity to make a decision, and the best-interests principle is applied, ‘the central objective is to avoid a paternalistic approach and to ensure that the incapacitous achieve equality with the capacitous’.

Application in practice

We now consider the above within the context of two real-life client examples.

Jean

Jean is an elderly client with dementia. She lives with her daughter, who provides her care. She has two other daughters who don’t get on. Jean receives domiciliary care once a week, to give her daughter some respite. Jean is very social, loves shopping, dining out and painting at her local art club. Recently, Jean has discovered the internet thanks to her grandson and now has an iPad.

A professional deputy for property and finances has been appointed for Jean, after her two warring daughters were removed as attorneys due to suspected financial abuse. Jean’s daughters like to take her out each week, but expect her to pay her way. Jean wants to be able to manage her own money and likes to give her grandchildren the odd monetary gift.

Mike

Mike is 26 and has a brain injury following an accident at work. He has capacity to make some decisions regarding his finances, but has been appointed a deputy to manage his property and finances following a successful personal injury compensation award. Mike’s mother has also just died, leaving him £100,000 of inheritance which he has not yet received. Mike’s total estate is worth around £1.6m, excluding a home that the deputy has just purchased. Mike loves music, playing games online and fast cars.

How would you as deputy keep Jean and Mike safe online?

Your primary concern as a financial deputy is the online financial abuse of Jean and Mike. You should work closely with Jean’s and Mike’s family / support team to promote online safety. It is important that support workers are trained in this area and understand how to report their concerns. A good website to refer vulnerable adults to (if they use the internet) is www.safernet.org.uk, which primarily supports people with learning difficulties to stay online.

A major issue is that it is not always clear when abuse happens until significant time has passed. Abusive behaviour could be in the form of emails sent to the client stating they have won the lottery, Facebook friend requests or letters regarding inheritances. Always ensure that you are working as a team with the client’s carers, friends, family and other professionals, and that communication lines are kept open.

Naturally, you would also be monitoring Jean and Mike’s spending habits. In their circumstances, it may also be wise to register your deputyship order with credit agencies, although consider this carefully first to strike a balance between risk avoidance and being least restrictive. Also bear in mind that Jean and Mike have the right for their private and family life to be respected (article 8 of the European Convention on Human Rights), which includes their correspondence (including emails) – monitoring them could constitute a breach.

How would you manage their general spending?

Given that Jean has been open to abuse in the past by relatives, you should already be on alert. On the condition that regular capacity assessments have concluded that both Jean and Mike are able to manage small day-to-day funds for themselves, they should be encouraged to do so. An ‘e-card’ (such as a ‘CredECard’) can be useful. The e-card account can be managed by the deputy and works like a top-up account. It would give Jean and Mike the freedom of spending their own money, but limits spending to a certain amount, and you can closely monitor expenditure on an almost-live basis. Jean and Mike can check their balance at a cashpoint, while you would have online access to their statements.

Jean’s wish to gift small amounts to her grandchildren should be supported, and a note made in the annual deputyship report OPG102 of how you have come to this decision in her best interests, taking into account the de minimis exception, reasonableness threshold and proportionality to her estate. Jean should not be restricted in how she spends her allocated spending money down to every penny, but a note of what you send her each week / month in spending should also be noted in your OPG102.

Mike wants to buy a £50,000 sports car. How do you assist Mike in making the decision to spend half of his inheritance on this?

The five principles of the MCA 2005 must be the starting point for any decision made. A suitably qualified mental capacity assessor should prepare a report based on the test for capacity for that specific decision. If Mike is deemed to lack capacity, you would need to ensure that you record how the decision made is in Mike’s best interests, whether he has previously made a series of unwise decisions or if this decision would place him at significant risk, bearing in mind recent case law on the distinction between incapacity and unwise decision-making.

You must also consider if the decision is out of character or irrational, and discuss with Mike the consequences of spending this money on the car – ie the depreciation of the asset – and point out that investing the money instead will increase the value of his estate. In order to support Mike with his decision, the scope of the decision should be limited to whether or not to buy the car, and the state benefits implications of Mike’s inheritance, rather than centring on what to spend the money on. You should consult with those around Mike, including case managers and/or carers and family members. It would be prudent to have the Driver and Vehicle Licensing Agency carry out a test on Mike’s driving ability for your own peace of mind, and run it past his vehicle insurers. In general, if you feel a purchase is disproportionate to your client’s estate, then it is always best to make an application to the court for authority first.

Mike wants to purchase a new property, but he hasn’t sold the old one. His other assets are now tied up in an investment portfolio, but he has been told about a bridging loan that he could enter into until the old property sells. What should you do?

If the decision to purchase a new property is considered to be in Mike’s best interests, while a bridging loan would be a short-term solution, you would need to consider carefully the terms and interest rates. The general powers granted for a property and finances deputy will not usually extend to the power to enter into a loan, and therefore you would need to prepare an application to the court for that specific power, the costs of which would need to be balanced against the cost of withdrawing funds from the portfolio.

The court will need to understand the financial consequences and risks associated with the loan compared to drawing down funds from the investment portfolio. It would be prudent to ask an independent financial adviser to provide a report on this, together with a market appraisal from a valuer / estate agent on the saleability of the current property and the market in general.

What should you do if you suspect financial abuse?

• Report the matter to OPG. OPG has a dedicated helpline for reporting abuse (opg.safeguardingunit@publicguardian.gsi.gov.uk / 0115 934 2777).
• Report the matter to the local authority adult safeguarding team.
• Report the matter to the police.