By Brian Bacon, Partner, and Eddie Fardell, Partner and Head of Court of Protection. Article first published in the Solicitors Journal, 26 November 2013.
The Court of Protection found itself in the spotlight again last week when Cathy Johnson, the mother of a girl severely injured at birth, was found guilty of plundering her daughter’s damages award.
She is now waiting to be sentenced and has been warned she faces “a significant” prison term. The popular press took delight in reporting that the case “exposed shocking failures by the Court of Protection”.
This was a terrible abuse of a catastrophically injured young girl awarded a substantial sum – £2.6m – to care for her for the rest of her life. Apparently funds remain to pay for her care for only a few years and she will then have to be publicly funded. The quality of her care is bound to be considerably affected.
This is not the first time such abuse has been revealed, but this one is particularly shocking. So why was this woman in a position to perpetrate this obnoxious crime? Why was not a professional deputy appointed?
The fact is that anyone can be appointed as a deputy by the Court of Protection. The applicant has to submit a declaration to the Court, who must be satisfied they are a fit and proper person to act; I do not know what scrutiny is given to the declaration form by the Court during the application process, but the questions focus primarily on whether the applicant has been made bankrupt or has judgment debts.
The Court will always order that the proposed deputy takes out a bond to protect the vulnerable party against financial abuse. But it is almost impossible for a lay deputy to take out a bond for more than £1m and this would of course have been insufficient in this case.
The Court can of course restrict the Deputy’s authority in the terms of their order. However, when appointing a Deputy the Court tries to strike a balance between providing them with sufficient flexibility to be able to carry out their role without applying to the Court every time they want to spend funds, and providing sufficient protection for the vulnerable party.
This case highlights the need to make sure that the right deputy is appointed in high value damages claims. It is uncommon for a family member to be appointed in such circumstances. The Court themselves have said that they prefer the appointment of a professional in damages cases, at least for the first few years after settlement. The Senior Judge of the Court, Denzil Lush, has gone on record to this effect.
In cases such as this the appointment of a professional is not going to make the protected party worse off financially. Where the damages award arises as a result of negligence, the costs of the professional acting as the deputy can be built into the value of the claim. So long as the professional deputy has adequate indemnity cover then the claimant is fully protected.
In most cases the family are relieved, in my experience, to have a professional appointed. Acting as the deputy in a high value damages case is a time consuming and onerous responsibility. Being a parent or husband or wife in circumstances such as these is invariably a full time and exhausting role and the additional duty of acting as the financial guardian is neither desirable nor welcomed.
I appreciate some families object to the imposition of a solicitor or other professional as the financial controller of their child’s damages award. They find it belittling to have to ask for funds. However, my experience is that so long as deputy deals with the issues that arise sensitively and involves the family in financial decisions, as indeed they should to fulfil their duties under the Mental Capacity Act and the Code of Practice, these concerns swiftly dissipate.
Deputies are of course supervised. This is the role of the Office of the Public Guardian. The deputy must account every year for all the funds received they receive and spend on behalf of the protected party. But abuse still takes place as graphically demonstrated by this case. The OPG, like all publicly funded institutions, are under pressure. There are some 30,000 deputies appointed, and they lack the resources to do the job properly; leaving staff are not replaced and more work is carried out by fewer people. One has to wonder whether they have the ability to properly scrutinise the thousands of deputyship accounts they receive each year.
This case is a truly shocking one. It is appalling to think that a mother could do this to her own terribly damaged child. I am quite sure this is an exceptional case. The families that I deal with are, generally speaking, the most devoted and selfless people possible. But nevertheless the risk always exists. Should the Court of Protection be prepared to expose the most vulnerable people in society to this risk?