U.K. Guardianship Controversies Mirror U.S. Concerns
Lou Ann Anderson
October 28, 2009
www.EstateofDenial.com

As guardianships (or conservatorships) become increasingly controversial here in Texas and across the U.S., similar stories are surfacing out of the United Kingdom.  Two recent articles detailed complaints surrounding the Court of Protection, a U.K. judicial venue established to “hear cases involving people who become unable to look after their own affairs but have not drawn up a ‘living will’ nominating a relative or friend to take control of their assets.” In a recent article, the Sunday Telegraph reports how the court adjudicates on the more contentious cases handled by the Office of the Public Guardian (OPG), which appoints deputies to act for the mentally impaired - sometimes family members, but sometimes solicitors or local authority officials.

According to the Sunday Telegraph article,

It is claimed the court dealt with about 23,000 cases in each of its first two years, assigning responsibility for assets totalling £3.2 billion. It received 2,312 complaints in its first year.

The OPG charged a total of £23 million in fees for overseeing the activities of deputies, according to a report.

An article in The Mail on Sunday cites similar statistics with a claim of 3,000 complaints in the first 18 months thus indicating that while an entity named Court of Protection might conjure an image that is both inviting and nurturing, the volume of complaints being received indicate at least the perception of a far different experience.

The Mail article characterizes the court as a “secret court is seizing the assets of thousands of elderly and mentally impaired people and turning control of their lives over to the State - against the wishes of their relatives.”

In describing the complaints, it says:

The cases involve civil servants from the Office of the Public Guardian (OPG), which last year took £23 million in fees directly from the bank accounts of those struck down by mental illness, involved in accidents or suffering from dementia.

The officials are legally required to act in cases where people do not have a ‘living will’, or lasting power of attorney, which hands control of their assets over to family or friends.

But the system elicited an extraordinary 3,000 complaints in its first 18 months of operation. Among them were allegations that officials failed to consult relatives, imposed huge fees and even ‘raided’ elderly people’s homes searching for documents.

Carers trying to cope with a mentally impaired loved one, forced to apply for a court order to access money, said they felt the system put them under suspicion as it assumed at the outset that they were out to defraud their relatives.

Opposition politicians said the system, set up by Justice Secretary Jack Straw, needed to be overhauled to take account of the fact that most people were ‘honourable and decent’ and had their loved ones’ best interests at heart.

Akin to here in the U.S., internet forums allow an exchange of guardianship experiences with the Telegraph reporting complaints of “bullying” letters and “being treated like a criminal” after being deemed unsuitable to look after their relatives’ affairs.

The Court allows family members to petition serving as a guardian, but here’s how the process is described:

Without this document, relatives must apply to the courts and the anonymous OPG, part of the Ministry of Justice based in an office block in Birmingham, is required to look into the background of carers to decide if they are fit to run the ill or elderly person’s affairs.

The organisation has 300 staff, costs £26.5 million a year to run and is headed by £80,000-a-year career civil servant Martin John, a former head of asylum and immigration policy in Whitehall. It prepares reports for the Court of Protection, based in a tower block in Archway, North London.

In many cases relatives have to complete a 50-page form giving huge amounts of personal information about themselves, their family, their own finances and their relationship with the person they wish to help care for.

The majority of applications are decided on the basis of paper evidence without holding a hearing. But applications relating to personal welfare, or large gifts or settlements, may be contentious and require the court to hold a hearing to decide the case.

These hearings, before a senior judge, examine evidence and witnesses, who can be compelled to appear. The court has the same powers as the High Court, but is closed to all but the parties involved in the case and their lawyers. The Press and public are banned.

The presiding judge then decides whether a family member can become a ‘deputy’ acting for their mentally impaired loved one. If no one is available, or if the judge decides a family member is not suitable, the court can appoint a local authority or in some cases a solicitor to carry out the task.

The OPG then charges an annual fee of up to £800 to supervise the activities of the deputy, whether they are a family member or a professional appointee.

The court takes over control of people’s finances, which means deputies - whether a relative or not - must get authorisation to pay expenses such as rent and household bills on their behalf.

Only if a relative is given power of attorney before a person is mentally incapacitated will they be able to avoid applying to the court and the OPG for the right to control their assets later.

Family members report these type situations:

But relatives caught up in the system say they are suddenly confronted by a legal and bureaucratic minefield.

Children’s author Heather Bateman was forced to get permission from the court to use family funds after an accident left her journalist husband Michael in a coma.

In a moving account of her family’s ordeal in Saga magazine, she wrote: ‘Michael and I were two independent working people. We had been married for 28 years. We had written our wills, both our names were on the deeds of the house we shared in London and the Norfolk cottage we had renovated over the years.

‘We had separate bank accounts and most of the bills were paid from Michael’s account. Now, to continue living in the way we always had done, I needed to access the money in his account.

‘The Court of Protection brought me 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.  She added: ‘I could write as many cheques as necessary up to £500. But if I needed to access more I had to get permission from the court.’

In another case:

Sunita Obhrai’s mother Pushpa has lived in council-run sheltered housing for 15 years. About two years ago, the 76-year-old widow started to become forgetful and once left the oven on, and the fire brigade had to be called.

Miss Obhrai claims that without her knowledge the local authority, Buckinghamshire County Council, were appointed to run her mother’s affairs.

She said: ‘They took over running my mother’s bank account and charged her over £1,000 a year in fees, and all they were doing was ensuring her rent and utility bills were paid by direct debit.

‘She is given just £20 a week pocket money. Council officials even came and searched her flat while she was asleep in her bedroom. They told me they had to retrieve documents so they could do their job. But someone should have been with my mother. It is unbelievable that they can behave in this way.’

Early this year Miss Obhrai applied to the court to take over from the local authority and oversee her mother’s finances herself. But the court rejected her appeal.

She said: ‘Many of our other relatives and friends wrote to the court backing me, but the court ignored them. I have never done anything to harm my mother, nor would I, but the council claims I am not a fit person to look after my mother’s affairs and there is little I can do to defend myself.’

The council said it could not discuss the case in detail, but did not deny that officials had let themselves into the elderly woman’s home uninvited and unaccompanied by a family member. A spokeswoman said: ‘The court has already deemed our action appropriate.’

Recourse sounds minimal, prolonged and probably, as here in the U.S., expensive.  American family members choosing to speak out on their guardianship experience, especially using online forums, have usually been stonewalled or ignored by government officials or systems.  In a 2008 presentation, the National Guardianship Association, an organization of professional guardians, characterized those seeking to address potentially abusive guardianships as “Disaffected family members and litigants have banded together to complain about what they perceive to be unjust treatment from guardians.”

Internet postings by U.K. families seem to express similar tales of frustration and abuse:

One recent posting by ‘gillm1′, whose mother suffers dementia, said: ‘They are causing me so much stress and worry and I feel I am being treated like a criminal. Their letters are bullying and threatening and they completely ignore everything I say.

‘I have grown to hate them! They took years to process my application and I object strongly to the extortionate fees they are demanding.’

Another writes: ‘They have upped my supervision level without taking any notice of my appeal - therefore costing my mum yet another £800 per year.  It’s nothing short of robbery.

‘All I want is to be left alone to pay my mum’s bills and to safeguard as much of her money as I can, but these people are constantly demanding high fees for their “services” which, as far as I can see, consist of harassing people and little else!’

‘Everybody is often assumed to be predatory,’ said ‘robb5′. They ‘are treated as guilty until proven innocent.

Repeatedly I’ve felt like I’m forever on trial, we’ve had to undergo financial and psychological strip-searches without the first bit of evidence to suspect anything.’

The Mail quotes a spokeswoman for the Department of Justice on the delicate balancing act.

She said: ‘Decisions are entirely a matter for the courts, based on the individual circumstances. It is a careful balancing act between protecting vulnerable people who have lost mental capacity and recognising their views and the perspectives of those close to them.

‘The next of kin is not necessarily the most appropriate person to act in such circumstances. The OPG recommends that every adult considers making a lasting power of attorney. This enables people to choose someone they know and trust to make decisions about their property and affairs or their personal welfare, should they become unable to make decisions for themselves.’

Personal responsibility serves as a great deterrent to many life problems.  When such responsibility is abdicated, government’s role should be on a limited basis.  A path to social and economic destruction is paved by those who support a “nanny state” in which government stands ready to assume responsibility for its citizens’ most basic needs.  Encouraging a strong presence of government intervention into people’s lives promotes dependency instead of self-sufficiency and goes against principles that historically brought prosperity to both the U.K. and the U.S.

Cultivating dependency also opens the door to abuse.  The Court of Protection articles mirror the sentiment of some American families who believe that the government systems designed to protect the vulnerable are instead being used as a source of enrichment for bureaucrats and/or their cronies.  Cases wherein a person’s estate plan is ignored or overridden by courts show an additionally troubling gateway trend in which responsible people are being drawn into probate venues or disputes for nothing more than exploitation by greedy lawyers, disgruntled family members or wannabe heirs.

Many western countries have aging populations who are going to present serious social and fiscal challenges.  Personal responsibility, looking to one’s own circle of family and friends along with vigilance toward government activity are required.  Guardianship abuse absolutely exists, but beware those who espouse the problem as the cure.