Making an urgent application to the Court of Protection

It has not been defined when an application should be classified as “urgent”.

Consensus is that an urgent application is where the court would need to deal with an application as soon as possible, usually within 24 hours.

It is usual for urgent applications to be made within court hours and dealt with at the court itself. On rare occasions, an application can be made out of hours by contacting the court by telephone and explaining the purpose of the application.

If made by telephone, the court will require an undertaking (a formal promise to do something) that the application form in the terms of the oral application will be filed at court.

An urgent order can be used for a variety of reasons such as:

  • Where there is a real risk of assets being lost, subject to financial abuse.
  • Access to funds in order to pay nursing home or care fees.
  • To meet a liability to pay the maintenance of a dependent.

A unique feature of an urgent application is that the court has discretion to disregard the filing of a COP3, the all-important capacity of assessment form. One may think this is odd given the role of the Court of Protection is to be satisfied that P does in deed lack capacity. However, in order to ensure that there is no loss to P, the court will usually waive the need for medical evidence, but limit the application to an interim (temporary) order for a set period. This would therefore ensure that the full application would still be considered at a later stage.

For the court to make such an order there would usually be directions to serve notice on the following:

  • Every party to the proceedings.
  • Anyone named as respondent in the application.
  • Any other person that the court directs.

Everyone should therefore be alive to the notion that the court does have wide discretionary powers in order to “jump” the queue, but it must be justified. The court could award a wasted costs order if the application is without merit.

Should you require assistance on such an application please contact the Court of Protection team at Anthony Gold.

Can I claim a refund via the Lasting Power of Attorney Refund Scheme?

Last year the Office of the Public Guardian (OPG) admitted that the fees it was charging for registering powers of attorneys were higher than the cost it actually incurred processing the applications.

As such the fee for registering an LPA was reduced in April 2017 from £110 to £82 and the OPG have launched a refund scheme so that those who paid the higher amount can apply for a partial refund.

A donor or attorney can apply for a refund if an application to register a power of attorney was made from 1 April 2013 to 31 March 2017.

How much is refunded will depend on when the fees were paid however the refund will also include interest at 0.5%.

The refund amounts are as follows:

When you paid the fee Refund for each power of attorney
April to September 2013 £54
October 2013 to March 2014 £34
April 2014 to March 2015 £37
April 2015 to March 2016 £38
April 2016 to March 2017 £45

 

It may take up to 12 weeks for a claim to be processed and the scheme will run until 31 January 2021.

Only a donor, attorney, deputy or a personal representative (where the donor has died) can make the claim and receive the refund.

Those seeking a refund can apply online or call the OPG on 0300 456 0300. Deputies and PRs must claim by phone. More guidance for completing the refund claims process can be found on the Gov.uk website, click here.

 

Fraud and the vulnerable – professional duties

It is a sad fact that the vulnerable are far more susceptible to fraud than the capable. One would assume therefore that professionals would owe a higher duty of care, when advising vulnerable people. This is especially so in relation to transactions.

However, this is not expressly set out in the 24th Edition of the Conveyancing Handbook for 2017. The Conveyancing Handbook, at Section 1.6.3, states that the Money Laundering Regulations 2007 (SI 2007/2157) apply to transactions. Those regulations require lawyers to take a risk-based approach to customer due diligence. However, being vulnerable is not listed as a risk factor. This may be due to problems in defining the vulnerable and concerns around discrimination.

Despite this, case law is full of examples of the vulnerable having been victims of not only fraud but also undue influence and professional negligence. This shows the vulnerable are clearly more at risk than the capable. As such they need additional assistance. Despite that, advice is often not as good as it should be. Some are not even aware of basic safeguards, such as only proceeding with a conveyance under a Lasting Power of Attorney, once they have received an office copy of that power from the Office of the Public Guardian (see Handbook at E2.11.6).

Part of their vulnerability stems from the fact than some are challenging people to deal with. The vulnerable are often isolated people with difficulties with communication and understanding financial issues. Many transactional lawyers operating on a fixed fee, find such clients taking up more time than others.  They become a client to avoid, not a client to invest considerable extra time in.

Despite having worked for many years with vulnerable people, either directly or on behalf of the Official Solicitor, Local Authorities or the Court of Protection, it is my view that such clients do require additional time and support. The Law Society guidance to the profession – meeting the needs of vulnerable clients sets out many good practice points, however all of them require additional thought and time. There is no shortcut to effective communication. Unless this is factored into the work, some vulnerable people will continue to experience problems.

A further risk factor is that once a problem has occurred some vulnerable people can find it difficult to raise issues in a timely fashion. This reduces the chances of correcting mistakes and mitigating losses. They are then faced with making a claim to recover losses. Again, this process will be difficult for them. Whilst, for those who lack capacity the usual limitation rules do not apply, some will miss out on recovery, unless they find specialist advice.

Given the ever-growing population of elderly and vulnerable people, this real need should be seen not as an additional risk, but as an opportunity to add value.  Equally those advising vulnerable persons should appreciate that they do require additional support and time.