Case Study: Resolving Family Disputes in the Court of Protection to Protect a Vulnerable Adult’s Best Interests

How Cate Searle, Court of Protection and Community Care Law Solicitor, secured a number of best interest decisions through the Court of Protection to allow an elderly woman to remain at home in the face of a difficult family dispute.

The situation

Maria was a widow in her mid-90s and had a diagnosis of Alzheimer’s. She lived at home in London, in the property where she had raised her five children. She attended a local day centre. Maria liked set routines: eating certain meals on certain days of the week; doing her own food shopping; looking after her elderly cats and listening to hymns. She did not like spending money on house repairs or decorations, and asked her two youngest children, Mark and Andy, to do these for her. Andy lived locally and Mark lived an hour away. Maria’s three oldest children lived further away and visited her three or four times a year.

A few years ago, Maria saw a solicitor about making a Will and Lasting Powers of Attorney (LPAs).  She made both types of LPA. The solicitor talked to Maria about her choice of Attorneys and asked if her five adult children got on. Maria explained that the three oldest children disliked Mark and Alan. She decided to appoint Mark and Andy as her Attorneys because they did everything for her anyway.

As Maria’s memory declined, it was clear that it wasn’t safe for her to be at home alone overnight. Social Services provided a carer to help Maria get ready for the day centre each morning, an hour every evening, and five hours at the weekend. Mark and Andy agreed they would fill the gaps in the care package to keep Maria safe. Mark would stay with Maria five nights a week and Andy would cover the other two nights. Mark claimed Carers’ Allowance as he would not be able to do much work in between looking after Maria.

Maria’s three older children argued that she should move to a care home, the family home should be sold and the sale proceeds divided up. Mark and Andy argued that it was in Maria’s best interests to stay at home. If Maria’s house was sold during her lifetime, the sale proceeds should be used to pay her care fees, not divided between the siblings.

The three older siblings began a series of complaints about Mark and Andy, reporting them first to Social Services Safeguarding Team and then to the Office of the Public Guardian (OPG), who oversee Deputies and Attorneys. They made 15 complaints in one year. They told Social Services that on an unannounced visit to Maria’s home, the carpets were tatty, the cat litter tray was soiled, and the fridge was empty, and claimed this proved that Mark was starving their mother. At the time of the visit, Mark and Maria were at the supermarket doing her weekly shop. The older siblings reported Mark to the Department of Work and Pensions (DWP) for pretending to be Maria’s carer to get a modest allowance; and they told the OPG that Mark was stealing from Maria because he did not pay rent for staying there five nights each week.

The investigations by the OPG, DWP and Social Services concluded that there was no wrong doing by Mark and Andy. The three older siblings made an application to the Court of Protection (CoP) demanding that their brothers be removed as Maria’s Attorneys.

What Martin Searle Solicitors did

Mark and Andy instructed Cate Searle to represent them in the CoP proceedings and to deal with the Directions Order that the Judge had made, which required them to provide the Court and their siblings with five years of Maria’s financial records. Cate assessed the financial records and advised Mark and Andy that they were all in order and did not show any financial wrongdoing. She helped Mark and Andy to prepare witness statements that explained all of the care and support that they gave to Maria, allowing her to remain living at home.

Cate advised the brothers that they should use their LPA Health and Welfare to get some of Maria’s records from Social Services to put before the Court. These records were very helpful, as they showed that Social Services believed that the brothers were consistently acting in Maria’s best interests.

Cate identified that Mark in particular was finding the sibling dispute distressing, and that his role as carer five days a week was having an impact on his own wellbeing. Mark had responded to his siblings’ aggression by refusing to let them visit Maria while he was there, and refusing to update them about Maria’s health.

Cate advised Mark that he had to allow visits, and that he should not withhold information about his mother, no matter how angry he was with his siblings’ behaviour. Cate suggested a visiting timetable for the siblings and asked Social Services to increase Maria’s care package so that paid carers could be there during visits and Mark could take a break. Social Services agreed to this. Cate also devised a simple weekly Health and Welfare email update for Mark and Andy to send to their siblings; and suggested that Mark and Andy could offer them an annual financial update. The siblings demanded a monthly financial update.

With the CoP hearing date approaching, it was evident from the tone of the siblings’ correspondence to Cate that they would not back down. They seemed determined to have their day in Court. Cate advised the brothers that one solution would be for them to relinquish the Finance Attorney role, and ask the Court to appoint one or both of them as Maria’s Deputy for Property and Finance.

Cate explained that this would allow her to argue at the hearing that the OPG would supervise the actions of Maria’s Finance Deputy and financial information sent to the OPG could be shared with the siblings annually. The brothers agreed that this solution would be in Maria’s best interests. Mark said he would step out and leave the Deputy role to Andy, as this might stop the family dispute. Their siblings continued to object.

At the hearing, the Judge took a firm line with the three older siblings, who he called “the objectors”. The Judge refused their application to make Mark pay rent and asked them “what part of the word carer do you not understand?”.  The Judge was disappointed that another judge had ordered the Attorneys to provide five years of financial records, when one year would have been sufficient, remarking “there is no financial abuse here and I cannot believe that I am looking at a receipt for £5 from Woolworths which has closed down”. The Judge told all five of the siblings that he found no fault by Mark and Andy, and that if Maria had mental capacity to understand that her five children were in Court arguing about her modest finances, she would feel ashamed.

The Judge accepted Cate’s proposal that the brothers step down as Finance Attorneys and that Andy be appointed as sole Finance Deputy. The Judge told the siblings that annual financial information sharing would be sufficient, and that they should reflect very carefully before making further complaints to the OPG. He declined the request to revoke the LPA for Health and Welfare, as he said Mark and Andy were doing an excellent job of caring for Maria at home.

The Outcome

The brothers were happy with the outcome of the final hearing, which allowed a framework to be put in place to minimise the family dispute so that they could focus on Maria’s best interests. Maria remained at home, cared for by Mark, Andy and paid carers, and passed away peacefully at the age of 98.

For expert advice on resolving Attorney Disputes, contact our Court of Protection and Community Care Law team on 01273 609911, or email info@ms-solicitors.co.uk.