124.Memorandum from Martin Terrell (MIB
1. I make this submission as a solicitor
in private practice with experience in dealing with the affairs
of elderly clients. I have over 10 years' experience in this area
of work and have a detailed knowledge of the legal and practical
2. I have written chapters on the financial
management of the affairs of elderly clients for Tolley's Finance
& Law for the Older Client and Butterworths' Older
Client Law Service. I have also contributed a number of chapters
to Heywood & Massey: Court of Protection Practice and
have written my own book A Practioner's Guide to the Court
of Protection which was published last year by Tolley's. I
am currently working on the 2nd edition of this book and am editing
the Law Society's Elderly Client Handbook. As well as editing
this book, I have written a chapter dealing specifically with
the financial affairs of elderly clients.
3. I am also a Panel Receiver and a member
of the Professional Receivers Forum of the Public Guardianship
4. My principle concern about the draft
Bill is that it has been prepared with the best intentions but
without a great deal of thought to its practical implications
"on the ground". It will be practitioners such as myself
who will need to deal with its implementation. The lack of thought
that has gone into this is emphasised by an email sent to a colleague
from the Mental Incapacity Bill Team of the DCA on 8 August stating:
"I am approaching a number of
our stakeholders to ask them if they can help me obtain a clearer
idea of these practical benefits and I hope that you would be
willing to provide me with some information from your specific
area if possible."
The correspondent sent this email on 8 August
and asked for replies by 18 August. This does indicate that the
draughtsmen have placed the "cart before the horse"
in drafting this legislation.
5. My own view is that legislation needs
to work backwards in terms of identifying the issues involved,
the problems with the existing legislation and where improvements
may be made. The main problem with the existing legislation is
that the Enduring Power of Attorney system provides inadequate
safeguards for the elderly and vulnerable individual. In a widely
quoted comment, the Master of the Court of Protection has stated
that some 10-15% of Enduring Powers of Attorney are used improperly
or fraudulently (Cretney & Lush 5th edition, para 12.1):
"financial abuse probably occurs
in about 10-15% of cases. Expressed as a percentage this may seem
to be a relatively minor problem, and maybe even an acceptable
price to pay for the 8S-9O of cases where attorneys act lawfully."
6. I have in my own experience dealt with
a case where a nursing home manager obtained Enduring Powers of
Attorney from a number of elderly residents who had no relatives
at hand and systematically defrauded them of over £500,000.
Eventually the fraud was detected and the manager was prosecuted
by the police. Unfortunately, not all the monies stolen were recovered
and several charges were dropped through lack of evidence. The
persons who could supply evidence were either mentally incapable
or had by then passed away and a great injustice has been allowed
to take place.
7. The proposed legislation does nothing
to address this type of situation. There are no additional safeguards
available to the donor of a lasting power of attorney. The existing
safeguard that all relatives of certain categories are to be notified
has been removed and replaced by a requirement that only specified
persons are notified.
8. I am also concerned by the proposal that
the powers of the donee of a lasting power of attorney should,
under clause 10 of the proposed Bill, extend to decisions about
personal welfare and may, if the lasting power of attorney contains
provisions to that effect, extend to refusing consent to the carrying
out or continuation of life sustaining treatment. This effectively
gives the attorney power of life and death over the donor. The
Bill does not take account of the practical consequences of this
9. In the vast majority of such cases there
is absolutely no dispute over what is appropriate for the incapable
person. To the extent possible the capable person gives his or
her own consent, relatives are consulted and doctors can then
determine what is in that person's "best interests".
Problems only arise where there is disagreement and generally
a dispute between relatives over where a person should live, whether
treatment should be prolonged or whether treatment should be curtailed.
Often these situations are extremely painful and difficult for
all concerned. In an ideal world, it is perhaps tempting to give
someone (the donee of a lasting power of attorney or a manager
appointed by a court) to make the final decision. This also allows
doctors to avoid making awkward decisions or getting involved
in family arguments.
10. The problem inherent in the draft Bill
is that a decision by a third party is only necessary where there
is a dispute and at least two alternative decisions that can be
made. In my own view, an attorney or manager is not the best person
to make a decision in this type of situation for the following
The donee/manager is generally not
The donee/manager is partisan in
that he or she is proposing one course of action which another
The donee/manager will either be
a professional who should not be presented with moral dilemmas
of this nature or a relative who in most cases will have an obvious
conflict of interest.
11. I would like to elaborate on this last
point in more detail and it is has been completely overlooked
in the legislation. It is a basic principle in litigation where
you are acting on behalf an incapable person that you have no
conflict of interest. A donee/manager who is a relative may also
be a beneficiary under the person's will or intestacy and therefore
has a clear conflict of interest. This may be an irrelevant consideration
in most families where the welfare of the individual is paramount.
However, a conflict arises whether or not it is real, it simply
has to be a potential conflict. The danger is nevertheless real
that medical and welfare decisions will be influenced by financial
12. I appreciate that in many cases attorneys
already act where financial decisions are made which will affect
their inheritance later on. However, the power only relates to
financial decisions and an attorney has a fiduciary duty towards
the donor's estate. A receiver has a duty to the Court of Protection
and if a solicitor, a professional duty as well, to act exclusively
in the patient's best interests. However, the attorney/receiver
has no direct control over a person's accommodation or treatment.
Generally, accommodation and treatment are dictated by a person's
needs rather than by their resources. The danger of the proposed
Bill is that it will become much easier for a beneficiary under
a person's will or intestacy to dictate where he or she lives
and how he should be treated. If I, as an attorney, who is also
a beneficiary, can see my inheritance disappearing in nursing
home fees, am I not going to be influenced by this when choosing
the nursing home and determining whether proposed treatment might
prolong the person's life?
13. To bring these concerns to a conclusion,
I would argue strongly that lasting powers of attorney should
have no place in this Bill. They add nothing to the existing arrangements
available under Enduring Powers of Attorney and if anything weaken
the safeguards already available to donors of Enduring Powers
of Attorney. There are improvements that can be made to Enduring
Powers of Attorney through legislation as well as through administrative
practice, but these are not addressed in the proposed legislation.
ADVANCE DECISIONS14. For
similar reasons, I am also concerned by the proposed legislation
concerning advance decisions. My understanding is that the law
already recoguises advance refusals in certain situations but
advanced decisions opens up the whole minefield of moral issues,
medical ethics and risk. There is no ideal legislative framework
for this type of situation which protects the patient, the doctor
as well as the relatives. It is extraordinary that an advance
decision might be verbal. If my elderly relative tells me in the
pub that he doesn't want to "end up" in a particular
way, then that constitutes a valid advance decision. If I then
communicate that decision to a doctor, who is perhaps under pressure
from his managers to free up a much needed hospital bed and act
in accordance with my evidence, my elderly relative's treatment
can be withdrawn, with death being the result. Both the doctor
and I are protected by clause 25(3) of the bill as long as we
believe that the decision was valid.
15. I would strongly advise therefore that
the provisions of this draft Bill relating to lasting powers of
attorney and advanced decisions are removed.
16. I can see no objection however to the
Court's powers to make decisions being set out in a statutory
framework. All this would do would be to transfer the existing
jurisdiction of the High Court to make declaratory judgements
to the new Court of Protection. The advantage of a court making
these decisions is that a court can take a strictly objective
view of a person's "best interests" and can look at
all the evidence. Soundings can be taken from different relatives
and the court can take independent advice from social workers,
doctors, solicitors involved in the case or concerned friends,
neighbours and relatives. In sensitive cases where there is an
obvious conflict of interest, the Official Solicitor can also
act to represent the incapable person. All that the proposed Bill
would do, it seems, is to make this jurisdiction more accessible
to a wider public.
17. If this is the outcome of the Bill then
there will be a positive advantage to it. However, some thought
needs to be given to the way in which the jurisdiction will be
established and its cost implications. I doubt whether in numerical
terms the High Court deals with many such cases each year. If
it were perceived that a more local and cost effective solution
were available nearby, would it not encourage people to take advantage
of it and air their grievances through this court? From a practitioner's
point of view, I notice families becoming ever more disputatious
and prone to argument over these issues. Litigation though is
often avoided simply by the High Court jurisdiction not being
widely understood and also being very expensive to pursue. If
a more accessible and more affordable jurisdiction were available
locally, it could potentially increase the appetite for litigation
in these situations. Has any thought been given to the resources
required? How will judges implement the court's jurisdiction and
what resources will be required?
18. My last concern relates to the definition
of capacity and how this impacts in practice. For example, the
jurisdiction of the Court of Protection may be relevant where
lack of capacity is temporary or relates to only one aspect of
a person's affairs. How are professionals let alone third parties
such as banks supposed to deal with these situations? If a person
is presumed capable and a manager has been appointed, where does
the presumption of capacity lie?
19. It is also unclear what degree of incapacity
is required. The present legislation refers to "mental disorder"
whereas the draft Bill refers to an "impairment in the functioning
of the mind." Would this for instance include someone who
is now alcoholic or has fits of depression?
20. A person also appears to be incapable
if he is unable to communicate a decision. I have recently dealt
with a stroke victim who understood very clearly what was going
on around her but could not communicate except in very general
terms. According to the Bill, she would be deemed to be incapable.
Clause 2 of the Bill tries to refine in five short paragraphs
a vast range of situations which the courts have struggled with
in determining whether or not a person is capable. To the credit
of the courts they have been somewhat flexible in interpreting
the existing law as it stands, but it is very difficult to apply
precise definitions to different situations. In a recent case
an elderly gentleman gave £200,000 to his next door neighbour.
His estate was worth only £230,000 and apparently he fully
understood what he was doing. According to the draft Bill, he
would be treated under clause 2(2) as able to make an "unwise
decision" and under clause 3 he would be deemed to be capable.
In this particular case, the court was able to set aside the gift
becausethe decision was irrational and could not have been property
thought through by the individual.
21. I dot believe you would expect a line
by line analysis of the Bill but I can provide a more detailed
response if this might be helpful. In view of the short timescale
provided one can only respond to the proposed Bill in very general
terms and hope that these considerations will be of assistance.
22. The comments set out in this submission
represent my own views and not those of my partners or firm.