A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
Two defining elements in her life were her dietary requirements; she had coeliac disease and required a gluten-free diet, and she was extremely fond of dogs – her own dog “Bobby” was described as the only living creature with which she shared any love or affection.
Mrs P did not make a power of attorney, and so when she lost the mental capacity to manage her own finances the Court of Protection appointed a solicitor as her professional deputy. This professional deputy was put in place to manage her money and property for her. Although Mrs P could easily afford the good things in life, the professional deputy was not prepared to pay for them. She was left “wearing ill-fitting clothes, and financially unable to pay to have her feminine needs attended to, such as having her hair and nails done”. The deputy also refused to support a more varied, therefore expensive, gluten-free diet for Mrs P.
But possibly the most life-altering change the deputy made was giving Bobby away.
This being said, it is not only “professionals” who fail to give due weight to the important details of life. The niece and great niece (by marriage) of the late Gladys Meek** (who were appointed by the Court as her lay deputies to manage her property) refused to grant a clothing allowance for their aunt as the clothes she would choose for herself were not what they deemed as appropriate, being “cheap and tawdry in appearance and quality…sequined dresses”.
Giving up your independence and the comfort of your own home to move into care must be one of the most challenging times in a person’s life. If you have to adopt a new routine and rhythm of life and live in close proximity with strangers, moments of pleasure and modest comforts can take on real significance. The ability to make small choices about the colour and feel of your clothing, the food that you put into your mouth and whether you want to preserve contact with your pet are all potentially significant choices.
Experienced professional deputies understand this. When my own client, Daniel, had to move into care, his cat Dougall was sadly too undomesticated to adapt to life in a nursing home. He went to stay on a farm on the outskirts of the town, and Daniel regularly visited Dougall, which they both appeared to enjoy greatly. This compromise ensured that Daniel’s needs were still attended to.
However, should you find that you are unable to make decisions for yourself, your happiness is more likely to be secured if you have given power to those who know you best and who you trust most to make your decisions for you, This can be done by granting a Lasting Power of Attorney. That being said, it is wise to leave as little as possible to chance, therefore you may assert some control over your future by setting out for your attorney(s) clear instructions or preferences. This can allow you to feel assured that your life is likely to include moments of pleasure through the little things in life which are “infinitely the most important”.
The Office of the Public Guardian is there to protect people in England and Wales who may not have the mental capacity to make certain decisions for themselves, for their health, their finances or both. In their guidance, “Make and register your lasting power of attorney - a guide”, they suggest a range of clauses that a person might want to include in their Lasting Power of Attorney:
- “While I have mental capacity, my attorneys must not make any decisions about selling my house.”
- “I’d like my pets to live with me for as long as possible – if I go into a care home, I’d like to take them with me.”
- “Whether or not I am mobile, I would like to spend time outdoors at least once a day.”
- “I’d like to have regular haircuts, manicures and pedicures.”
Some may argue that these provisions are trivial. However, they may prove to be the pleasures that enrich a life in care, and provide real moments of joy. If you, or your clients, would like advice and support in relation to Deputyship or Lasting Powers of Attorney, please contact Sheree Green.
*Mrs P v Rochdale Borough Council and others  EWCOP B1
** MJ and JM v The Public Guardian  EWCOP 2966
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