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Jean-Yves Gilg

Editor, Solicitors Journal

Curious happenings

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Curious happenings

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How are you to deal with elephant tusks that may have been illegally traded, but form part of an estate?

There's an apocryphal saying that comes to mind when I think about the past few weeks: 'May you live in interesting times'. It is supposedly a curse and I can well understand why. Here are a few of the random, tricky and above all 'interesting' issues we have been dealing with recently - and a few practical pointers that I hope will help anyone in similar situations.

Home visits

My team manage the financial affairs of a number of vulnerable adults and as part of that, we are very often out and about and visiting these clients. This can involve us being alone in a client's home, and we have recently had cause to consider the safety issues that can result from this.

The Health & Safety Executive has information and guidance on the issues that employers and employees face when dealing with unpredictable client behaviour and situations1 - as a firm, we are now reviewing our policies and procedures. One of the main issues is monitoring, supervision and being aware of where a staff member is, and I am very interested in using a mobile phone app to help with this.

The Suzy Lamplugh Trust have a directory of the apps2 that are available for this cause, and I am going to be testing a couple of them over the next few weeks. If you would like my thoughts on how they work, then please do get in touch.

Elephant tusks

Not always what one expects to have to deal with in an estate, but I was left rather bemused when I was told a pair were located in the property of the deceased. Do they have a value? Can they be sold? Do they need to be handed over to a proper authority? My research so far suggests that these could only be traded if they are 'worked items' from before 1 June 1947, and that a raw elephant tusk does not qualify as 'worked'.

There also appear to be stricter measures in place for African elephant tusks than for Indian elephant tusks. It looks to be something of a minefield, so will be asking the Animal and Plant Health Agency (APHA) Centre for International Trade for advice.3

Bad decisions

We are all aware that the Mental Capacity Act 2005 contains a clear statement that a person is not to be treated as unable to make a decision, merely because he makes an unwise decision. Clients often have a chuckle about this when discussing LPAs, and make comments about gambling all their money away.

It is a serious point though when looking after the finances of someone as a deputy. By definition, that person has been found to be incapable of managing their own money to some extent, but they need to be supported in making their own decisions so far as they can, and we shouldn't intervene against their will.

What to do, though, when the unwise decision involves substance abuse that results in the client being hospitalised? Or when the unwise decision involves accessing websites and chat rooms that are potentially gateways to illegal images? It is incredibly difficult not to intervene immediately in a paternalistic manner, restricting access to money or taking away the computer (for example).

The judgement in the case of CC v KK and STCC [2012] EWHC 2136 (COP) includes the following statement, which reiterates that this approach is wrong:

'I remind myself again of the danger of the 'protection imperative' identified by Ryder J in Oldham MBC v GW and PW (supra). These considerations underpin the cardinal rule, enshrined in statute, that a person is not to be treated as unable to make a decision merely because she makes what is perceived as being an unwise one.' n

References

  1. See the Health and Safety Executive's guidance here: https://bit.ly/1SmH0Ie

  2. The Suzy Lamplugh Trust's app director: https://bit.ly/1YPIzyI

  3. See the government's guidance here: https://bit.ly/1UbSmjq (wildlife.licensing@apha.gsi.gov.uk)

Sofia Tayton is a partner and head of care and capacity at Lodders Solicitors

She writes the regular in-practice article on care and capacity for Private Client Adviser

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