Solicitors’ Delay in preparing a Will – When is it Negligent?
Sadly, the Court of Protection has again recently been in the headlines for the wrong reasons. The much publicised case of Samantha Svendsen highlights the risk of leaving the management of a substantial award of compensation in the hands of an inexperienced family lay Deputy. The recent conviction of her mother Cathy Watson and her ex-husband Robert Hills almost brings to an end a sorry series of events. Sentencing is awaited but lengthy custodial sentences are expected.
By way of background, Samantha was awarded compensation of £2.6 million as a result of negligence at birth and her mother was appointed her Receiver by the Court of Protection. Receiver is the old term used by the Court prior to the introduction of the Mental Capacity Act 2005. Between them, Watson and Hills are thought to have stolen in the region of £500,000 from the fund.
The compensation was designed to provide for Samantha’s care needs for the remainder of her life. The loss of such a significant sum must seriously call into question whether that is now possible. If all her needs cannot be met then the cost for doing so will inevitably fall back on the public purse. Given the award was originally made from public funds, this potentially represents a “double whammy” for the taxpayer.
Such criminal behaviour can never be predicted in advance but would Samantha have been better served by the involvement of an experienced professional Deputy? It is now common practice in cases such as this for a professional to be appointed and you would certainly hope the position would have been vastly different if that had occurred.
Of course we cannot ignore the role of the Court throughout this matter. Much of the spending that led to these problems came from funds released with the prior authority of the Court. The Court does not have the resources to effectively police every Deputy but could supervision have been better in this case? 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 plays a vital role in protecting vulnerable individuals who lack capacity to manage their own affairs. It is not perfect, but then again what public institution is? Perhaps it is wishful thinking in such straightened times to believe that a review may lead to additional funds being made available to improve the service the Court provides. Nonetheless, something similar is likely to happen again and inevitably the Court will then come under even greater scrutiny. In the meantime, it will continue quietly providing protection for many thousands of other vulnerable individuals who thankfully don’t face the same outcome as Samantha Svendsen.
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