Paved with good intentions: The new Public Guardianship Office

Feature

posted 17 May 2001 in Volume 6 Issue 4

Paved with good intentions: The new Public Guardianship Office

By Martin Terrell Rix and Kay

Anyone sending a letter to the Public Trust Office on Friday 30^th March would in the unlikely event of receiving an immediate reply on Monday 2^nd April have had this from the Public Guardianship Office. Apart from the new name a logo (a cake with someone’s slice being extracted?) and a mission statement this would appear to come from the same organisation. Thus the Public Trust Office having been buried on one day it has re-emerged the following day Phoenix like as the Public Guardianship Office (PGO).

Criticism and proposals for change of the old Public Trust Office have been a familiar part of the scenery for more than two years beginning with the National Audit Office Report of February 1999[1] and the range of responsibilities carried over to the new Public Guardianship Office has already been described[2] in some detail. The intentions behind these changes are by now well known[3]. Peripheral work would be transferred to other bodies and a leaner organisation would become more focused on the needs of individual patients. By better assessing each case receiverships could be tailored to the needs of the individual patients and their carers. The regime would be less intrusive and paternalistic while at the same time more rigorous in examining accounts and preventing financial abuse. Above all the PGO would be a ‘centre of excellence’. Now that the PGO is a reality and changes begin to unfold it is time to examine them critically. According to its own publicity ‘the PGO will be radically different from the PTO in its pursuit of excellence through focusing on the needs of clients and receivers being accessible and empowering our staff to deliver’. The question remains what these changes mean in practice and whether they respond to the long-standing concerns of practitioners patients and receivers.

The old Public Trust Office was an Executive Agency in its own right and the Public Trustee had specific authority under the Mental Health Act 1983 and the Court of Protection Rules 1994[4]. The new Public Guardianship Office is a hybrid body neither Agency nor Court with no statutory basis for its operation. There is for instance no such person as the Public Guardian. There is no provision for the PGO to make orders issue directions or certificates. According to the government it is a ‘new and discrete body sited within the Court of Protection.’[5] Despite its different name and identity it exists solely to implement and support the work of the Court of Protection. This is far from radical as prior to 1994 this same role was carried out by the Protection Division of the Court of Protection. The PGO is simply the administrative arm of the Court dealing with enquiries processing applications examining accounts and investments releasing funds and arranging Visits. For the PGO to have any authority it will exercise the Court’s authority. This will take place in practice where officers of the PGO will serve as ‘nominated officers’ of the Court of Protection. These officers may exercise the Court’s statutory jurisdiction subject to directions of the Master. In effect they will have similar powers to those of the Public Trustee under the old regime.[6]

The trust work of the Public Trust Office has now been transferred to the Official Solicitor and the Court Funds Office has been transferred to the Court Service. The Enduring Power of Attorney jurisdiction will be carried out by the PGO and new Rules have been implemented to reflect the new terminology[7]. The PGO will also continue to act as receiver as last resort. Where this function had been exercised by the Public Trustee this will now be carried out by the Chief Executive of the Public Guardianship Office being appointed receiver in place of the Public Trustee and in new cases where there is no other suitable receiver. It is not a title that trips off the tongue readily and the number of ‘in-house’ receiverships will be reduced significantly with the transfer of such work to the private sector. In many cases there are relatives or professionals involved with the patient who are able to take on this role. In other cases receivers will be appointed from members of the receivership panel. This is in the course of being constituted with over 400 applications for membership of the panel being processed by the PGO. The aim is to have a regional network of experienced practitioners who will work to agreed service criteria as receivers for patients.

To give effect to these changes the Court of Protection Rules 2001[8] came into effect on 1^st April 2001. These do not as already mentioned refer to the Public Guardianship Office but appear to repeat the1994 Rules without referring to the Public Trustee. The new Court of Protection Rules do however consolidate two previous amendments to the Rules [9] principally dealing with the new fee structure. Thus the new Rules reflect the current fee structure which has been effective since 1^st September 2000. This replaced the scale fee with reduced annual administration fees of £205 (£1 750 where the PGO acts as receiver) and increased fees for individual transactions. For instance the fee on making an application is now £230 (formerly £100) and on making a statutory will a staggering £475 (up from a more modest £100)[10].

The New Rules also introduce other minor changes which can easily be overlooked:

An Application for the appointment of a new receiver is no longer made in Form A. Previously a Form A was for first applications and Form B was for subsequent applications. Rule 7 simply provides that an application ‘shall state the name and address of the applicant and the proposed receiver and their relationship (if any)’. This information will be supplied in the new Receiver’s Declaration.

There is a single Form A for all other formal applications.

There is no longer a discretion to dispense with notice being given to a patient (Rule 24). This has been introduced to comply with the Human Rights Act 1998.

Documents may now be served by the Document Exchange or by electronic means (Rule 20).

Where the Court has received medical evidence that a patient’s condition may improve it now has a positive obligation to review such evidence from time to time (rule 35).

Where a decision of the Court has been made without an attended hearing an aggrieved person may apply for a review within fourteen days (Rule 54) instead of eight days.

The annual administration fee is now reduced where it is not charged for a full year (Rule 78).

The new Rules designed for the work of the PGO are not very substantial and might easily escape notice. Other changes in practice and procedure are being made and these are already quite noticeable. New forms have been redesigned with the house style and the patient is referred to as ‘the client’ or ‘the incapacitated person’. Thus:

A person applying to be appointed a receiver must now complete a Receiver’s Declaration. This asks quite detailed information about the applicant and asks a number of personal questions relating to matters such as bankruptcy criminal convictions disqualification as a director and conflicts of interest. These forms have only been in use a few weeks and have already identified applicants with a record of dishonesty or financial mismanagement which the Court would otherwise not known about. The form also asks for a personal undertaking to deal with a daunting list of responsibilities.

The old Certificate of Family and Property (Form CP5) has now been replaced by a thirty page questionnaire called the Statement of Client’s Assets & Income. This asks for more information about the patient and his circumstances than the old form for example asking for details of friends ‘with close interest in the client’s welfare’. All such persons should be notified of the application.

Notice to notifiable relatives and friends must be given in a Notification Letter. This sets out the prospective Receiver’s many duties and also sets out a person’s rights to object. This is likely to increase objections to applications.

There is now a single form of Receiver’s Account replacing the old short form enquiry and the separate account. This is a more exhaustive fifteen page form and places income and expenditure in categories rather than list every single transaction over a year. This will make accounting (as well as auditing) much harder as a Receiver will need to keep a separate tally of say nursing home fees over a year to show one figure for this category of payment in the Account.

All receivers are now required to take out a security bond. In the past this requirement was waived for solicitor-receivers. In practice though in the unlikely event of default by a solicitor-receiver it is more efficient to call in a bond than to claim on the solicitor’s indemnity policy. If the Court allows receivers greater control over capital then the use of bonds to provide security for capital as well as income will be extended.

An independent complaints examiner has now been appointed.

Further changes will emerge as the PGO finds its feet and other aspects of the reform programme emerge. For instance the investment role of the PGO is still in the course of being examined. But enough has been done to enable an initial assessment to be made. Do the changes lead to a much needed improvement in delivery to a vulnerable and neglected sector of society? Is there a new philosophy that is based on the core needs of the individual and can tailor support to those needs? Will it live up to its expectations as centre of excellence?

The changes described in this article are some way short of the legislative overhaul of the law relating to mental incapacity which has long been called for. Implementation of the Law Commission’s proposals set out in Mental Incapacity[12] as long ago as 1995 is still on hold. This envisaged an enhanced Court of Protection sitting across the country dealing with welfare and healthcare issues as well as financial affairs being quite distinct from a separate body which would supervise receivers and attorneys. Legislation for such a system has already been enacted in Scotland and this provides for the creation of a Public Guardianship Office.[13] This division of roles is thus anticipated in the creation of the PGO.

For the moment the old PTO has a new name and logo a different letterhead and new forms. There are no substantive changes to the jurisdiction of the Court of Protection under the Mental Health Act 1983. Two years of criticism reviews and consultations have condemned the PTO for its inefficiency and bureaucracy. Yet most criticism of the PTO (and the Court of Protection) has stemmed from a few simple problems that have not yet been fully addressed. These include the lack of proper resources to introduce modern IT systems low morale among staff and a consequent high staff turnover. The PTO was expected to be self financing and consequently lacked resources to invest in its own development. The new fee scale will reduce income and savings will be made by selling Stewart House and providing a reduced service in terms of increasing the autonomy of receivers. But such autonomy cannot be achieved overnight. The PGO still has the same caseload of receivership work but with a reduced income to administer this as well as fewer staff. Furthermore increasing autonomy involves a more laborious risk-assessment in processing applications and a greater degree of supervision. Years of criticism uncertainty lack of investment and upheaval have damaged staff morale and experienced staff have left or moved to management positions to implement the reform programme. New staff are being recruited but it takes time to find and then train people. There will be further disruption to services when a new IT system is installed and with a complete change in premises from Stewart House to Archway Tower in North London. While the PGO remains in a state of transition services may deteriorate further before they improve.

Other areas of concern have also been neglected. The Court of Protection itself remains understaffed and unable to deal with the increasing demands being made upon it. No provision has been made for improvements to the Enduring Power of Attorney system which is so open to abuse.[14] There is therefore no indication that the creation of the PGO will transform what is the Cinderella of the Court Service. The present changes reflect some very sensible aims but they also give rise to expectations and only time will tell if they can be fulfilled.

References

1 National Audit Office Protecting the Financial Welfare of People with Mental Incapacity HC206 1998-99 12 February 1999; for an overview of the history of official proposals and consultations see Changes for the Better by Jan Wright in Trusts and Estates Law Journal April 2001.

2 See for instance PTO – PGO What difference does a name make? by Ginny Jenkins ECA January/February 2001.

3 See for example The Future of the Public Trust Office by Gordon Ashton in ECA May-June 2000.

4 Section 94(1)(aa) and (1A) Mental Health Act 1983 refer to the Public Trustee as does Rule 6 of the Court of Protection Rules 1994 (SI 1994 No 3046).

5 Making Changes: the Future of the Public Trust Office – The Way Forward and an Analysis of Consultation December 2000 at 2.02

6 See Rule 6 of the Court of Protection Rules 1994

7 The Court of Protection (Enduring Power of Attorney) Rules 2001 (SI 2001 No 825)

8 SI 2001 No 284

9 the Court of Protection Rules (Amendment) Rules 1999 (SI 1999 No 2504) and the Court of Protection (Amendment) Rules 2000 (SI 2000 No 2025).

10 See New Fees at the Public Trust Office by Martin Terrell in ECA September 2000.

11 Rule 26 Court of Protection Rules 1994 allowed the Court or the Public Trustee to dispense with notice if the patient was deemed to be incapable of understanding it or it would be injurious to the patient’s health.

12 Law Com No 231 published in February 1995

13 The Adults with Incapacity (Scotland) Act 2000 was enacted on 29th March 2000 and received Royal Assent on 9th May 2000.

14 The Quinquennial Review by Ann Chant published in November 1999 went beyond its remit to set out proposals for improving the regulation and oversight of Enduring Powers of Attorney.

By Martin Rix Rix and Kay