The protection panellist
A normal day for Patricia Wass is very different from your average private client solicitor’s. Patricia was appointed by the Court of Protection (CoP) to its panel of deputies in 2011, one of only 65 such appointments to date. As a panel deputy, Patricia manages the affairs of clients who have lost mental capacity and hadn’t made either an enduring power of attorney or a lasting power of attorney (LPA). ‘I often act for elderly people with no relatives, who may be in a care home and who may need help with finances,’ Patricia explains. ‘Sometimes there has been a family falling out or conflicts of interest, and the vulnerable person needs representing. Often I deal with cases of financial abuse where a lay deputy has been discharged by the court either because they haven’t been able to cope, or have used the funds of the client inappropriately.’
Working in the mental capacity team
Deputy work for the CoP is only part of Patricia’s brief. The rest of her time is spent alongside Foot Anstey’s clinical negligence department, where she works as a consultant on all issues of mental capacity and often deals with profoundly disabled individuals. ‘Our litigation team make substantial claims against the NHS,’ she says. ‘If a child was born with physical and/or mental disabilities due to the negligence of the hospital, usually a seven-figure sum is settled and a periodic sum is given to the client throughout the child’s life.’
This lump sum is often used to build bespoke homes for the disabled child, or to adapt existing property to suit their needs. Patricia manages this process: liaising with families over budgets and payments post-litigation, managing architects and project managers in respect of the purchase and adaptation of property, and briefing assistive technology experts who adapt properties so that music systems, curtains, etc can be turned on or opened by the blink of an eye.
The job is tough, as it can involve working with families in very sad situations. ‘Sometimes the parents can be depressed or grieving for the child they were expecting,’ says Patricia. ‘You have to deal with death within the family too, where the disabled child passes away. Some parents are able to cope with it, while others have great difficulty.’
On top of the usual challenges every private client solicitor must face – managing a heavy workload and building trusted relationships with families – Patricia explains that she has to deal with additional challenges specific to her work supporting the clinical negligence team: ‘Sometimes other members of the family think the litigation pot is one that they all can dip into, even though the monies are for the lifetime of my client.’ She not only guards this money for her client, but also needs to manage it. ‘I have to strike a balance between making sure monies are invested wisely, but meeting expenditure requirements so that the monies last for the whole of my clients’ lifetimes,’ she says.
Her work not just as a CoP deputy but also as a private client lawyer presents unique challenges. Patricia notes that clients have to understand that they need to be prepared for old age, and that they need to put into place wills, LPAs and advance decisions where appropriate. ‘People are living longer and will end up suffering from multi-complex illnesses, e.g. physical infirmity and dementia-type illnesses at the end of their life,’ she says. ‘Pressure on finances and worries about long-term care funding often mean that the elderly enter into complex living arrangements with families – sharing accommodation or living in annexes. It is important in these cases that they have separate legal representation and proper legal structures (e.g. declaration of trust) to protect them for the future, especially if things don’t work out with their family.’
Tragically, Patricia explains, abuse of the elderly is not uncommon: ‘Abuse can take many forms –financial, psychological, physical – and is often inflicted by those known to the elderly. It is sometimes difficult to identify, but lawyers need to be aware of the issues.’
Added to the already complicated mix of elderly care issues is the fact that the demographics of society are changing. People are living longer and this means there will be increased pressure on limited resources in terms of sheltered accommodation and care homes. Moreover, cuts to local authority funding will mean fewer statutory services are available. ‘There is much in the media at the moment about the inadequacy of 15-minute domiciliary care visits, and funding issues for long-term care,’ notes Patricia. ‘The money has to come from somewhere, but how much should the elderly be expected to contribute?’
Patricia adds that pressure on pensions will exacerbate the problem: ‘The state pension system is going to come under increasing pressure as more of us grow old and turn to the state for help. While the government is taking steps to assist with this, for instance through auto-enrolment into pension schemes, it is a fact that the general population are not doing enough to prepare themselves for old age.’
Involvement with STEP
Despite an increasing workload, Patricia plays an active and high-profile role in STEP as a member of Council and the mental capacity special interest group (SIG), and as Chair of the England and Wales Regional Committee.
Mental capacity issues are common across the world, and the SIG helps identify common areas and how practitioners can properly assist each other. ‘The SIG helps us to understand how things work in other jurisdictions; for example, how documents we use in England and Wales – for example powers of attorney and deputyships – relate to other countries,’ says Patricia. The purpose of the SIGs is to help inform the professional work that STEP members undertake. The mental capacity SIG helps Patricia understand cross-border issues and ultimately provide a better service to her clients: ‘If you have clients wanting to buy property in Spain then you’re not just giving advice on their English wills and powers of attorney, but you’re making sure they have advice on Spanish wills and equivalent powers of attorney too. The SIG helps cross-border communication by sharing experiences and good practice; in this way we are learning from each other and providing appropriately for our clients.’
My main duty is to ensure that STEP members at every level feel empowered to get involved with the STEP. It’s important to not lose sight of members’ needs
Patricia balances her membership of the mental capacity SIG, and its cross-border concerns, with that of the England and Wales Committee and its mandate to serve the interests of domestic practitioners. ‘My main duty is to ensure that STEP members at every level feel empowered to get involved with the STEP organisation. It’s important to not lose sight of members’ needs at every level. It’s about remembering our roots and recognising that every STEP member is important. The 2021 member consultation will help ascertain where support is and isn’t needed among members.’
Two STEP members have been instrumental in Patricia’s involvement in the Society: Adrian Miller TEP, Partner at Michelmores, and Michael Young TEP, Director of Tax and Trusts at Thrings Solicitors. ‘I wouldn’t have done any of this without the quiet encouragement of Adrian,’ says Patricia. ‘He has pushed me to achieve what I have in my STEP journey, and in my own career journey. Michael has also been a wise and instructive sounding board and has always taken time to listen to me when I have needed to discuss the bigger picture.’
It’s Patricia’s involvement at national level that has led to her consideration of the bigger picture and the wider global impact of STEP: ‘I enjoy thinking about the strategy and where STEP is going, how it is facing up to its future, and how it still remains a recognised body of professional excellence, particularly taking into account the different jurisdictions involved across the world.’
The Society has to adapt to meet future challenges, and the 2021 Consultation is integral to this. STEP has to figure out how to be of continuing relevance to practitioners across the world. Should it become a regulator, or remain a professional society offering excellence of knowledge? How should it engage younger members? Patricia wants to see consistency of the STEP brand: ‘Can I be confident that if I am asked to recommend a STEP member in another jurisdiction that they will be able to offer the same standard that I am expected to offer as a STEP England and Wales member?’
The consultation is only the start of the process: the main objectives have to be agreed, and only then can work to achieve them begin. But that’s perhaps not the most difficult part of the process; STEP needs the support and commitment of its members to ensure its ambitions are achieved. As Patricia explains: ‘We need to ensure STEP members buy into this and work hard together to achieve STEP’s objectives across the world.’
The Office of the Public Guardian (OPG) (for England and Wales) has recently introduced digital lasting powers of attorney (LPAs) (see the STEP Journal, May 2013 ‘Transforming the OPG’), which enable people to complete most of the LPA process online. Here Patricia shares her thoughts on the new system.
‘The online process has created some unnecessary work for solicitors, e.g. where forms have to be downloaded in a specific order. Moreover, solicitors usually ask the client to sign all the paperwork at once, and this is not possible at the moment with the new system.
‘On the other hand, the digital system will probably mean there will be fewer applications for severance of ineffective clauses in the LPAs, as the system encourages you to produce the document without much thought being given to the addition of any extra restrictions or conditions. The input of data on to the forms is helpful – you only put the information in once, and the forms are then automatically populated.
‘The OPG are also looking to develop a hybrid form, e.g. one form for property and finance, and health and welfare matters. The role of the certificate provider is also being looked at in the present consultation, ‘Transforming the services of the OPG – enabling digital by default’. As with any online system, protection of the vulnerable is an issue: who completes the forms, explains it to the person before signing, etc, and identifies the right person to sign?’
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