The areas of work in which we have particular expertise, experience and excellence.
Articles | Tue 24th Jan, 2017
The Court of Protection Team at 9 Gough Chambers contains market-leading barristers who are also recognised in Personal Injury, Clinical Negligence and Public / Family law.
We therefore provide a unique perspective to issues relating to the welfare and decision making for those who are incapable of doing so themselves: including those disabled and of reduced mental capacity arising out of injury and clinical negligence.
Andrew Ritchie QC chairing the ‘Deputy Day’ hosted by Frenkel Topping with Edward Lamb speaking on best interests.
Edward Lamb speaking at the MBL conference chaired by Andrew Bagchi QC. Edward spoke on international perspectives of best interests [Ed’s talk is available here].
A selection of recent cases:
This mail marks the first in a series of fortnightly ‘practice pointers’ that highlight recent developments in the Court of Protection. The first two in the series deal with cases straddling the civil jurisdiction and the Court of Protection: playing to Chambers’ existing strengths as a market leader in heavy-weight clinical negligence and personal injury.
In cases involving significant damages, often in excess of £1m, Counsel are often asked to consider which is the most appropriate mechanism for the handling of an award for an incapacitious claimant.
In the Court of Protection (as opposed to the civil) jurisdiction where a person lacks capacity to manage property and affairs the Court of Protection will (usually) appoint a deputy. However trusts are often created for claimants in personal injury cases to protect an award from being treated as capital when assessing entitlement to means tested benefits. What then is the correct mechanism?
Following SM v HM  COPLR 187 (a decision of HHJ Marshall) it was widely assumed by practitioners that the creation of a deputyship under the Mental Capacity Act 2005 (‘MCA 2005’) rather than a personal injury trust was the more appropriate mechanism to manage the award. The practice was sufficiently widespread for it to be considered by many as a presumption.
In SM v HM HHJ Marshall highlighted that each case is fact specific (always an unhelpful indication when seeking clarity!) but that on the facts of the case a trust should be established. She drew three main principles:
SM v HM remained the leading authority on this point until Watt v. ABC  EWCOP 2532 which Charles J decided late last year.
Charles J had approved a £1.5m award in the QBD. He held that P may regain capacity at some stage in the future. With support P was likely to be able to make decisions about income. If P were to recover capacity in relation to capital expenditure, he would be at risk of exploitation.
Charles J considered an irrevocable trust permitting autonomy of income but no access to capital. Charles J specifically rejected the notion that there was a presumption of deputyship over trusts. Each case has to be considered on its own merits and the starting point of a strong presumption in favour of deputyship may not be in P’s best interests; particularly in light of his findings arising from the risk of exploitation.
Six helpful practice points are recorded by Charles J (see paragraph 92):
Of particular note is (6) above. If this sensible consideration is followed, much of the dispute that led to this case could necessarily be avoided.
The extent to which Watt advances anything particularly new is limited and some see the judgment as a rather semantic exercise. It does however remind us that each case requires individual consideration on its own merits. It is important therefore to bear the following broad principles in mind:
The above list is not exhaustive but should provide a helpful starting point to the consideration of this issue.
Kindly written by Edward Lamb, Head of Court of Protection.
Click here to share this shortlist.
(It will expire after 30 days.)