Professional protection

The recent Samantha Svendsen case highlights the significant risk of leaving the management of a substantial compensation award to an inexperienced family lay deputy. The convictions of Samantha's mother, Cathy Watson, and Watson's ex-husband, Robert Hills, for serious theft offences received extensive media coverage - and rightly so.

The more sorry-cases like this that are known, the greater chance we have of similar ones being avoided in future. Sentencing is still awaited but the trial judge has made it clear that lengthy custodial sentences should be expected. It's a stark warning for those of us charged with managing an individual's financial affairs.

Samantha was awarded compensation of £2.6m following negligence at birth, which resulted in brain damage from oxygen starvation. Her mother was appointed her 'receiver' by the Court of Protection (the old term used prior to the term deputy in the Mental Capacity Act 2005). At the recent trial, there was evidence of the mother's systematic excessive spending to fund a luxury lifestyle. Between them, Watson and Hills are thought to have stolen about £500,000 from the fund.

The loss of such a sizeable sum must call into question whether it will now be possible for the fund to cover Samantha's care and other needs for the remainder of her life. That was, after all, the intention of her award. If her needs cannot be met then the cost for doing so will inevitably fall back on the public purse. This represents a 'double whammy' for the taxpayer, given the original claim was against and funded by the NHS.

Of course, criminal behaviour can never be predicted, but the obvious question in this case is whether Samantha would have been better served by involving an experienced professional deputy? It is now common practice in such cases for a professional to be appointed. If so, you would certainly hope the position would have been vastly different. However, as much as we may not wish to think this, even the appointing a professional is no cast-iron guarantee of probity, I guess.

The upside of having a professional on board is that at least the client (and therefore by implication the taxpayer) would have the safety net of professional indemnity insurance were the bond to be insufficient. No mention has been made of the security bond in the Svendsen case, so it is perhaps not unreasonable to think it will be insufficient to cover the loss.

Court's role

The Watson and Hills trial also highlighted the Court of Protection's role. Much of the dishonest spending came from funds released with the prior authority of the court, so inevitably questions have been raised about the supervision. The reality is that the court does not have the resources to effectively police every deputy, but should supervision have been better? Liberal Democrat MP John Hemming, a long-standing critic of the court, has already called for a review of its operations.

As a professional deputy myself, I believe the Court of Protection plays a vital and ever-growing role in protecting vulnerable individuals who lack capacity to manage their own affairs. It is not perfect, but what public institution is? I hope that a review could lead to additional funds being made available to improve the service the court provides, but I accept this is wishful thinking in the current public-spending environment.

Nonetheless, I fear something similar will happen again, then the court will come under even greater scrutiny. In the meantime, it will continue quietly protecting the interests of many thousands of other vulnerable individuals who thankfully don't face the same outcome as Samantha Svendsen.

Simon Hardy is a private client lawyer and head of the deputyship service at Kingsley Napley

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