Acting to stop harm: the FCA and Appointed Representatives
As a Court of Protection practitioner acting for many clients with catastrophic injuries it is a sad but unavoidable fact that I will occasionally receive a call advising me of the unexpected death of a client. When this has happened it affects me deeply, particularly when it involves a child, so I can only imagine what my client’s family is going through. I like to develop strong relationships with my clients based not just on our professional dealings but also in a personal capacity. The decisions I take can have a significant impact on their lives and I believe it makes me a better lawyer if I take the time to know my client on a personal level. As a result, you feel more keenly the loss of a client you have come to know well over a long period of time.
These experiences have also led me to reflect on whether the time is ripe for a change in the law on Wills, specifically where a young child is involved and a substantial sum of compensation is at issue. Most people are aware that they can make a Will at 18 years of age, as long as they have the capacity to do so. Fewer realise that making a Will is still possible even when capacity is lacking if they apply to the Court of Protection for a statutory Will. This is meat and drink for a Court of Protection specialist.
This is of little comfort when somebody dies before reaching 18 and their estate falls to be distributed at the whim of the state under the rules of intestacy. This can often lead to manifestly unfair results. Imagine the case of a single mother who has fought for her disabled child for many years, successfully pursuing a claim for compensation and dedicating her life and love to that child’s welfare. Let us also imagine for the purposes of this scenario that the child’s father has shown little or no inclination to be involved in their child’s life or to offer support to the mother. A not uncommon scenario and one regularly played out on some daytime TV programmes (albeit usually without the added complications of significant disability and compensation awards). In the interests of fairness I also acknowledge it may equally be fathers who find themselves in this situation.
In my example of the single mother, the father - despite playing a minimal role at best in the child’s upbringing - is entitled under law to 50% of their estate after inheritance tax and liabilities have been paid. This could represent a very significant sum. Is this considered fair and reasonable in the circumstances? This whole scenario could be avoided if the powers of the Court of Protection were extended to allow the making of Wills for a child under 18. The Court is ideally placed to consider what should be the best outcome in these circumstances. Is it therefore time for changes to be considered?
I accept this suggestion may open a whole new can of worms and raise further questions. How far and to whom should these changes apply? Why only to such a narrowly defined group in society? Why worry about this when there are so many other pressing issues that need parliamentary consideration? Nevertheless, if we are to be a society built on important values such as fairness, then this is something I would support being reviewed at the very least if the political will could be found.
Should you have any questions about the issues raised in this blog or have a question about the Court of Protection, please contact Simon Hardy or a member of our private client team. You may also be interested in reading our other blogs relating to Court of Protection and Deputyship.
An amended version of this blog appeared in The Times in April 2016.
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