Money and Welfare – Inextricably Linked

Posted on 21 Oct 2016

A recent Court of Protection case has emphasised how financial decision making has a direct effect on health and welfare.

In this case, when Mrs P lost her mental capacity her solicitor put himself forward to be her financial deputy. He was granted that position and instructed by the Court to find out exactly what income assets and liabilities Mrs P had.

The solicitor delayed and ignored a request from Mrs P’s social worker to arrange for her dog, Bobby, to be taken to visit her at the care home.

Mrs P had always enjoyed a good quality of life. Her social worker had said “of single most importance in her life is her dog and having some form of contact with her dog in the future if possible”. The social worker had also reported that due to the solicitor’s prevarication Mrs P’s welfare had suffered and she was wearing ill-fitting clothes and not able to pay for basic needs such as having her hair and nails done.

In examining the solicitor’s actions, the Court found that their lack of haste and inattention to important details in Mrs P’s life had led to her health and welfare suffering. The solicitor was removed as her financial deputy and instead a panel solicitor appointed.

From a legal standpoint, financial decision making is separate from health and welfare decisions in that an attorney or deputy responsible for someone’s finances cannot automatically make decisions about their health and welfare.

However, this case highlights that financial and health and welfare decisions should not be looked at in isolation from each other. So, when considering setting up Lasting Powers of Attorney for oneself or applying to become a deputy for someone else, the person who will be making decisions should always appreciate that a holistic approach must be taken. At the end of the day, the sole focus when making a decision for another person must be “what is in that person’s best interests?”

In becoming a financial decision maker for an incapacitated person there has to be some acceptance of responsibility towards their health and welfare.

By Siân Thompson – Solicitor specialising in matters of Probate Law such as Wills, Trusts & Estates. She is a court-appointed Deputy for clients under the Court of Protection and also acts as a professional trustee and attorney, as well as being STEP qualified and a full member of Solicitors for the Elderly.