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Make the right choices before they’re made for you says leading Court of Protection lawyer
Article date: 03/07/2013
Philip Martin-Summers, head of the care and capacity team at Higgs & Sons, is encouraging people in the region to complete lasting powers of attorney for health and welfare following recent high profile cases in the press.
"A lasting power of attorney allows you to choose people to act on your behalf and make decisions about your health and personal welfare when you are unable to make decisions for yourself," explains Philip.
"Many people will have read recently about Wanda Maddocks who was jailed for contempt of court for fighting to remove her father John, 80, from the care of Stoke-on-Trent City Council. Wanda took drastic action and 'kidnapped' her father from a care home in Stoke and smuggled him out of the country to Turkey."
"Although this is an extreme case, a lasting power of attorney health and welfare form completed by her father while he was still able to do so, would have given Ms Maddocks the ability to make decisions about her father's healthcare and medical treatment as well as decide where he lived and day-to-day decisions about his personal welfare, such as diet, dress and daily routine. Of course, any decision made does need to be in the best interests of the person it concerns.
Contrary to popular opinion, a next of kin has no legal authority to make decisions on behalf of a parent.
Whilst a local authority could still initiate proceedings in the Court of Protection if it did not agree with the decisions stipulated within the form and that of an attorney, it is unlikely to do so unless there is a serious issue as the costs of those proceedings may have to be borne by the local authority, although it is always necessary to try to resolve conflict and difficult issues without recourse to the court.
Philip says that the case of Ms Maddocks also sparked a national row over transparency in the family justice system after it emerged she was not present or even represented at court. The Court of Protection settles the affairs and appoints deputies to act on behalf of people who are unable to make decisions about their personal health, finance or welfare."
"Sometimes better known as 'secret courts' in the tabloid media, the Court of Protection holds its hearings in private for some very good reasons," explains Philip.
"Often matters being discussed are sensitive such as whether someone has the mental capacity to enter into marriage or consent to sexual relations - these matters should not be discussed in a public forum in order to respect privacy and dignity.
"The Court has a wealth of knowledge and experience and decisions as to what are in a person's best interests are not made without considering all the facts of a case."
In the case of Ms Maddocks, the Court of Protection jailed her for contempt of court for ignoring the court's orders not to try to remove her father from care. She is thought to be the first person to be imprisoned by the Court of Protection.
Concluding, Philip said: "Had Mr Maddocks completed the appropriate legal documents while he was still mentally able , this whole case could have been avoided. We would encourage people across the region to consider their future while they still have the mental and physical capacity to do so."
Higgs & Sons work from two offices in the Black Country - Waterfront Business Park in Brierley Hill and Kingswinford. The firm employs over 200 people, which includes 100 specialist lawyers.
To find out more or to see how Philip and his team can help you, call him on 0845 111 5050 or email Philip.firstname.lastname@example.org.