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The clue is in the name: the Court of Protection

Recent case exposes weakness in the system that is meant to protect people without capacity

20 November 2013

The recent case of Samantha Svendsen who has cerebral palsy, and was awarded £2.6 million in compensation by Grimsby and Scunthorpe Health Authority after suffering brain damage at birth, has shone a light on flaws in the Court of Protection (CoP) after her mother, Cathy Watson, squandered her daughter’s damages.

The Court of Protection makes decisions and appoints deputies to act on behalf of people who are unable to make decisions about their personal health, finance or welfare. The Office of the Public Guardianship (the administrative arm of CoP) exists with a sole purpose of protecting the financial assets and affairs of people lacking mental capacity who may have been awarded large sums for their life long care.

As the deputies for their daughter, Ms Watson and her ex-husband Robert Hills took large sums of money from the CoP intended for their severely brain-damaged daughter and paid for houses, cars, holidays and cosmetic surgery.

Mr Hills admitted theft and gave evidence against his ex-wife.  Ms Watson has been convicted of three counts of theft and awaits sentencing.

S1(5) of the Mental Capacity Act 2005 provides that any decision made on behalf of a person who lacks capacity must be done, or made, in their best interests.

The activities of Ms Svendsen’s parents would suggest that more needs to be done to strengthen and uphold ‘best interest’.

In personal injury and clinical negligence law, practitioners must always give consideration to the fundamental principles that underline how best the injured person’s damages can be protected. Confidence in this system must be maintained.

While a family member is often best placed to act as deputy, there is no guarantee that this is always in the best interest of those needing protection.

In the case of R S [2010] 1 WLR 1082: HHJ Hazel Marshall QC afforded notable reasoning on the issue of a family member serving as deputy.

HHJ Marshall sets out various reasons including that it was preferable to appoint a family member where possible given the close relationship and such a person’s familiarity with the needs and wishes of the injured person.

However, in some cases familial intentions are not necessarily always in the injured person or the family's best interests. In addition and sadly, intentions such as those exhibited in this case are not always transparent at the outset and as with Ms Svendsen’s case, it is a little too late.

It is estimated that Ms Svendsen, now 29 years old, has only ‘four to seven years’ of damages remaining, after which she would have to rely on the State.

Improvements could be made within the CoP, these include the introduction of a stringent regular vetting system where family members are made deputy.

Taking on a deputyship can be very onerous, and by having a professional deputy in place you can avoid the demanding responsibilities of this role. Here at Leigh Day we act on behalf of many people who require a deputy and we work closely with firms who provide this service.

The purpose for which the compensation for injury is intended should remain at the forefront of the administration of the funds provided. Regulating and ensuring the primacy of best interest must stay prominent in the heart of CoP.

This article is written by Onyoja Momoh, paralegal to clinical negligence partner Olive Lewin.

Information was correct at time of publishing. See terms and conditions for further details.

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