I’ve covered several Court of Protection cases on Same Difference over the years. This strikes me as one of the more unusual ones. Surely, in some cases, a person can recover the mental capacity to control money and make their own decisions? The Court should recognise this.
A secret court is controlling £2billion of assets of thousands of elderly and mentally impaired people and paying them a paltry rate of interest, the Mail reveals today. The controversial actions of the Court of Protection, which one MP has criticised as ‘bordering on malpractice’, are supposed to uphold the interests of 16,000 vulnerable people – but many claim they destroy the value of savings. Here SUE REID tells the story of Neil Barker, a successful businessman whose finances have been at the mercy of the court since he was injured in a horrific accident.
Neil Barker is, in many ways, a lucky man. At 36, he has a loving girlfriend, Valeria, a five-bedroom house overlooking the park in a smart West London suburb — and he’s made a dramatic recovery from a motorbike crash ten years ago which left him with brain injuries.
All he wants to do is to get on with his life as a successful computer consultant and property restorer — without interference from the State.
But a huge sum of his money is lying in a State bank account controlled by a hidden corner of the legal system: the astonishingly powerful Court of Protection, which has decreed that Neil’s accident means he lacks the mental capacity to handle his own financial affairs.
Neil, who is chatty and clearly lucid, told me last week: ‘It is very stressful to be told by the State that I am not able to make decisions about my own money or investments, especially when that is untrue and I have recovered my health.
‘I was given £1.8 million in compensation by the insurance company after my accident. A lot of that has been frittered away over time by the Court of Protection and I am powerless to do anything to stop it.’
His story is shocking. But Neil is just one of thousands of people whose financial assets are being managed by the Court of Protection (CoP), which was set up by New Labour’s 2005 Mental Capacity Act to make decisions for ill, confused or elderly people deemed to lack the ability to do so for themselves.
The CoP has draconian and sweeping powers. Judges, sitting alone and in secrecy, deal with thousands of cases a year, making far-reaching rulings about almost every aspect of citizens’ lives — and often those of their relatives, too.
They can compel people to undergo surgery, use contraception or have abortions.
They can decide if a life-support system is switched off, where a person lives and with whom — even if their marriage should be annulled and whether their last will and testament is torn up.
Equally controversially, the CoP judges can authorise what are called Deprivation of Liberty Safeguards (DOLS), which allow council or NHS officials to restrain someone in a hospital, care home or re-training facility for as long as the State deems it to be ‘in their best interests’.
The Lib Dem MP John Hemming, who is campaigning for more openness in the CoP, estimates that there are hundreds of these ‘secret prisoners’ across the country.
And while it might seem essential to have a court taking decisions to protect the vulnerable, the secrecy with which the CoP operates — with the public barred from hearings and the Press forbidden from identifying people involved in cases — is deeply disturbing.
Individuals who have disobeyed the court’s rulings or spoken out about what has happened to them or their relatives — even to their local MP — have been threatened with, or sent to, prison.
A legal expert who regularly attends CoP hearings says that the numbers imprisoned for falling foul of the court in the past five years may run into hundreds.
Just last week, the Mail revealed the case of Wanda Maddocks, who was sentenced to five months in prison by the CoP when she objected to her father, John, being sent to a care home against her will.
She has been able to reveal her story only because her father has died.
There is another power of this court that is also highly contentious. Astonishingly, £2 billion of vulnerable people’s money is now under the control of the CoP.
This enormous sum is held by another State offshoot, the Court Funds Office (CFO), which has the role of ‘providing a safe place’ for the funds.
Extraordinarily, as I have discovered, the money is in fact being used to help reduce our national debt figure.
The CFO has sent the £2 billion to the UK Debt Management Office, an agency of the Treasury, where the funds are set against the billions that this country owes.
Furthermore, the life savings of those suffering from dementia, incapacitating diseases, or even old age — as well as people like Neil Barker, who have received accident compensation pay-outs and are deemed unable to run their financial affairs — are paid a paltry interest rate for the use of their money by the State: currently 0.5 per cent, just a third of the rate paid by National Savings.
Understandably, many of those who are caught up in the system object that they are left badly out-of-pocket.
Some families find that even though the CoP is in charge of their loved ones’ multi-million-pound negligence or accident awards, the money is not earning enough interest to cover their needs — even though its investment is meant to fund a lifetime of care.
Once the COP decides a person is incapable of handling their finances, a so-called deputy is appointed to make day-to-day decisions about their money.
The deputy is appointed by the judge and can be a family member. If no relative is suitable, then the court will choose a local authority representative, often a social worker, or a solicitor to carry out the task.
Many families are left in the unenviable position of having to ask the officially appointed deputy for money to care for their loved ones — and appeal to the CoP if they disagree with the decision.
Needless to say, thousands have complained about the court since 2007, when it began operations.
There are allegations of its officials — including some deputies — charging exorbitant fees, over-riding the wishes of relatives, frittering away money, raiding the elderly’s homes searching for documents and intercepting personal emails.
In a depressingly typical case, children’s author Heather Bateman was forced to seek permission from the court to use family funds after an accident left her journalist husband Michael in a coma.
She wrote a moving account of her family’s ordeal in Saga magazine: ‘Michael and I were two independent working people.
‘We had been married for 28 years. We had separate bank accounts and most of the bills were paid from Michael’s account.
‘Now, to continue living the way we had always done, I needed to access the money in his account.
‘The Court of Protection brought almost as much anger, grief and frustration into my life as the accident itself.
‘It is an alien, intrusive, time-consuming and costly institution, which was completely out of tune with what we were going through. It ruled my waking moments and my many sleepless nights.’
Mrs Bateman even had to apply to the court for permission to pay the couple’s daughter’s university fees.
‘I could write as many cheques as I wanted up to £500. But if I needed more, I had to ask the permission of the court.’
Fury over the CoP has erupted on social networking sites and on help forums set up by charities.
Only recently the Alzheimer’s Society received this heartbreaking plea for help: ‘My family is having severe problems with a solicitor who has been appointed by the CoP as deputy for my mother of 87, who unfortunately suffers from dementia.
‘They have managed to make a complete mess of my mother’s affairs. She had capital of £40,000 and income of £850 a month.
‘Her expenditure (predominantly on carers) was approximately £2,500 a month, meaning that, by now, she should have £27,000 of her capital left.
‘However, we are in a situation where her bank account is overdrawn. There are unpaid bills and direct debits.
‘The carers have not been paid so, understandably, some are reluctant to continue working. This means my mother is not receiving the care she needs.
‘We are at our wits’ end, trying to find out why there is no money to meet her obligations. What really frightens me is what would happen to someone with no family to support them?’
This family is not alone. Stories of incompetence and even possible fraud have emerged in blogs and forums about the CoP.
In particular, there are tales of exorbitant fees charged by deputies. One retired lawyer was asked for £4,100 in fees to withdraw £5,800 of her own money.
In another case, the proceeds of the sale of a house, authorised by the CoP deputy, were paid into the wrong account.
And one family was charged £42,000 in fees for the legal paperwork to transfer a sick daughter’s care to her mother after the father died.
But not all the grievances are about money. Take the case which emerged last year of pensioners Norman Davies and Peggy Ross, who were looking forward to going on their annual cruise when Cardiff Council intervened.
The council argued that it was not in the ‘best interests’ of 82-year-old Mrs Ross, who has dementia and lives in a care home, to go on the holiday.
Mrs Ross’s social worker decided the pensioner lacked the capacity to make a decision about whether she should go on the £3,200 cruise because ‘her ideas were not based in reality’.
She said the council was worried that Mrs Ross might wander off on the ship or fall overboard.
Just before the holiday, the council went to the CoP to obtain a DOLS to prevent Mrs Ross leaving her care home.
The judge, to his credit, refused to make the order, which has allowed details of the case to become public. The couple duly enjoyed a 16-day cruise around the Mediterranean.
However, lawyers and MPs have said it illustrates how the CoP is being used by council apparatchiks — social workers and care home workers, in particular — to meddle with and control people’s lives.
Mr Davies, a lucid 81-year-old former engineer, who lives near Newport, said after the holiday: ‘They tried to strip Peggy of her rights completely. The whole thing was disgusting from start to finish.’
He is not the only person to think that of the CoP. At one recent hearing, a desperate mother asked the court to allow the life-support machine keeping her brain- damaged daughter alive to be switched off.
As is standard in the court, the daughter was referred to only by the letter ‘M’ to protect her identity.
But the judge also issued a Draconian injunction imposing secrecy for as long as ‘M’ lived.
The ruling barred the media or anyone interested in the case from approaching a list of 65 people who play, or had played, some part in the girl’s life.
And it stifled any reasonable debate on the moral issues of the case and stopped her own family publicly expressing their views on what should happen or why.
The injunction made clear that those who made such inquiries, apart from to the solicitors of ‘M’, would be sent to prison or have their assets seized as a punishment.
This would probably not come as a surprise to Neil Barker. He says his life is being ruined by the CoP and that the court has lost him thousands of pounds.
This week, he told me that, after his motorbike crash in April 2003, he struggled to carry out everyday tasks because of a brain injury. Even going to the shops to buy groceries was a major challenge.
His family, to whom he is still close, were worried that he would not be able to manage his own money.
And when he won £1.8 million in a personal injury claim after the accident, they agreed that Neil’s pay-out should be placed in a CoP-controlled account.
A solicitor from the firm which dealt with the injury claim was appointed as his deputy by the CoP to make financial decisions on his behalf.
Neil says: ‘I thought at the time it would be nice not to worry about money, that it would be like an ordinary bank account with added security. But I was wrong.
‘Now I have made a full recovery, but the CoP refuses to let go.
‘I have trained as a computer engineer. I have renovated a house successfully and sold it for a profit.
‘I am well enough to run my own business, to manage my own finances, but I am not being allowed to do so by this court and the deputy.’
Neil explains that his own home was bought with £1.2 million from his pay-out — money the CoP agreed to release for the purchase.
But he adds: ‘The rest of the funds have been allowed to dwindle away. The interest rate on the money at the Bank of England account is so low that I estimate I have lost £75,000 over the years.’
At one stage — before the banking collapse and interest rates fell — Neil discovered that the bank where he was fixing the computers would have paid him eight times more in interest than what he was receiving from the CoP account.
That is not his only grievance. During his fight to free himself — and his money — from the clutches of the CoP, he has undergone a series of independent medical examinations which, he claims, prove he has fully recovered from his brain injury.
The DVLA has also tested his driving and found him completely capable of driving a car. The cost of £4,500 for these checks had to be paid for by Neil himself.
Yet, still the CoP and the deputy have prevaricated and refused to release his money.
‘The most recent medical tests were two years ago by an eminent doctor who said I was like any other normal person,’ says Neil now. ‘My IQ was found to be more than 125, which is well above average.’
Speaking with the permission of his solicitor this week — who says his story is in the public domain because of a BBC interview he gave two years ago — Neil added, with some anger: ‘I am quite capable of managing my financial affairs, yet I am still being told by the court and the deputy that it is not the case.
‘I am continuing my fight and I am starting legal proceedings against the CoP.’
It will be an epic battle, but one that most people in Britain must surely hope he wins.
