Court of protection gives authority to spend £1.35 million for a building project for a young man who suffered a catastrophic brain injury
Patricia Wass, consultant at Foot Anstey, says there will be more work for the office of the public guardian and the court of protection with the increasingly elderly demographic.
Is financial abuse of mentally incapacitated people by family members or carers a big issue? Do the issues change if you are UHNW?
The financial abuse of mentally incapacitated people, especially by family members, is not limited to those families who are financially constrained. Ultra-high net worth clients can be vulnerable where there is the temptation of large sums of money that family members may believe they are entitled to for whatever reason, prior to the death of an elderly parent. They often see this as an advance on their inheritance that they believe to be justified.
Do religious beliefs impact on how some UHNW families deal with mental incapacity?
The wishes and feelings of the person who lacks capacity have to be taken into consideration, and this can cover the differences in culture and religious belief. One of the issues that commonly has to be dealt with for ultra-high net worth Muslim clients is to ensure that their investments are made in a Sharia-compliant way. The court is sympathetic in ensuring that the wishes, feelings and beliefs of the incapacitated person are taken into consideration.
What interesting cases of mental incapacity related to the UHNW clients have you been dealing with or you wish to comment on?
I act for a young man who suffered a catastrophic brain stem injury following a car accident, and who suffers from locked-in syndrome as in also partially mentally incapacitated. He received substantial damages as a result of his accident to be invested for him and used for his care for the remainder of his lifetime. Following his accident, he lived with his mother in the family home, and he expressed a wish to be independent, but to have his mother living close by. We made an application to the court of protection and were given authority to spend £1.35 million on a building project that saw us purchasing a large plot of land on which we built two properties. The first was a bespoke property adapted for the use of my incapacitated client, and the other property was built for the occupation by his mother.
I have also acted in a case where there was financial abuse by a son of an elderly client who was misappropriating his mother’s funds, managing to use a large sum to pay off a mortgage in the name of himself and his wife. That property was then sold and another bought. Following his discharge as a deputy for his mother, we were able to call in the security bond from the court of protection, to contact the land registry regarding the property and to ensure our client’s interests were protected. We also made a successful claim against a firm of solicitors who had acted for the elderly lady involved and failed to give proper and independent advice resulting in a successful negligence claim.
What trends do you see in the industry?
With the increasingly elderly demographic, there will be more work for the office of the public guardian and the court of protection. There has been a significant rise in the number of legal firms specialising in court of protection work, and this trend will probably continue with the increased workload.