Secrets uncovered

The Court of Protection was positioned as a "secret court" holding billions of pounds of vulnerable clients' monies and paying "paltry" levels of interest in a recent newspaper article. The piece has highlighted the need for a better understanding of the key role that the court, and its appointed deputies, play.

Dating back to as early as 1339 but known as the Court of Protection since 1947, the court is not, and has never been, designed to be a bank.

For the majority of this century, the Court Funds Office paid a reasonable 6 per cent gross interest, so it was often advantageous during this period to keep client funds with the court. In line with the wider economic climate, this rate has fallen to 0.5 per cent in recent years, which has created problems for clients who rely on interest payments to use as their income.

A key point that the article fails to highlight, however, is that it is not mandatory to keep a client's funds with the court and the responsibility of managing these funds in a client's best interests falls on the court's appointed deputies.

On being initially appointed to a case, a prudent deputy will seek independent financial advice and is usually compelled to at least consider this by the order they are appointed under. This allows for the best investment opportunities to be identified with a view to maximising clients' monies to ensure that all care and support needs can be met in the long term.

It is important to remember that, by and large, any funds held by a deputy will be the only source of income for clients for the rest of their lives.

In reality, the supposed "£2bn fortune" quoted as being held by the court represents only a small fraction of the total amount being managed on behalf of individuals who have lost the mental capacity to manage their own affairs.

Clients' needs

It is pertinent to ask: what would happen to these funds if the Court of Protection and its deputies didn't exist in this country?

For example, one client, now in his late 20s, suffered from an acquired brain injury when he was knocked over by a car age eight. Even before the accident, the client's environment was difficult. His father was an alcoholic, who subsequently died as a direct result of this addiction. And his mother, responsible for two other siblings, found her son's post-accident care needs challenging.

There is no doubt, and with all empathy, that in the absence of the Court of Protection and a deputy to manage this client's funds that the compensation awarded to him would have quickly disappeared. Unable to obtain employment as a result of the acquired brain injury, who would have covered the cost of living and long-term care needs of this vulnerable individual?

Deputies whose client funds remain with the court should seek independent financial advice and make an application to the court to move the monies into potentially more lucrative investments in accordance with that advice. This is a request that the court is unlikely to refuse. In the current climate, a professional deputy is likely to be deemed negligent if they are still holding the majority of a client's funds in court.

The role and responsibilities of the Court of Protection, and in turn its appointed deputies, are far reaching and while financial due diligence is a key aspect, the wider psychological and care requirements of vulnerable individuals are equally important and fall under its remit.

Rather than attacking a system that protects those unable to protect themselves, the media should report on the wider implications of not having a court to protect those within society who need it most.

Simon Heapy is an associate at Linder Myers

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