Gold Rush Part 3. Lawyers, first hearing, allegations need not be proved.

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Court of Protection solicitors usually pay for Charity endorsement and Law Society Mental Capacity Accreditation.

They increasingly work for large Alternative Business Structures which market themselves as old style solicitors but are commercially aware corporations with scant competition and no personal liability .

Fees and services are therefore fairly standardised.

These lawyers are also contracted by the government to act as Official Solicitors.

To attend the hearing to remove your loved one in less than 24 hours you will be billed £500 over the phone and informed that this is half the legal aid rate.

On arrival at court you meet your lawyer who liaises with the LA solicitor and tells you that if you agree their Orders, you can avoid the police arriving to remove .

So faced with no option you agree to anything.

If you do not, the judge will usually order what the LA want anyway.

What you are unlikely to be told is that removal of your loved is unlikely at this point, as ‘incapacity‘ has not been assessed, an Official Solicitor not yet appointed and Deprivation of Liberty Safeguards not yet in place.

Your protestation that  allegations of parental incapacity, abuse and neglect are out of context, unfair and/ or lies is ignored.

It would appear such allegations do not need to be proved.

In contrast to care proceedings where s31(2) Childrens Act provides it must be proved that a child is suffering or likely to suffer significant harm on the balance of probabilities, there is no such requirement for an adult under the MCA and courts have stated Parliament did not intend there to be one.

Rarely, if ever, will the court hold a specific fact finding hearing on allegations made by social services .

Such a failure of natural justice/ due process can only aid false, unfair accusations against families now that only residential care is funded.

A Local Authority v PB and P, one of the few judgments on fact finding, saw the removal of an ‘incapacitated’ adult from his mother on the basis of her alleged inadequate care.

Charles J noting ‘there are a number of ways in which the best interests issues can be put to the court. Some of them may well involve proceeding on the basis that historical disputes of fact can be left as that and as matters of disagreement .(As they were in this case.) In other cases, that would not be so’.

But no reported cases indicate what these ‘other cases’ might be.

So we haven’t a clue when/if fact finding will be deemed necessary as a separate exercise or even as part of a ‘best interests’ checklist .

And there is no judicial, or practice direction, or indeed any guidance.

So at best, fact finding is ad hoc and rare in today’s clogged up courts where judges are under a statutory duty to have regard to the costs of proceedings.

The allegations upon which hundreds of thousands of families have been torn apart for life, assets seized and liberty lost have never been proved.

Attempts at forcing proof of social services allegations are case management issues and any appeal against refusal is limited to a local High Court judge, and  LA and OS legal costs may be payable.

So for now your loved one is still at home, but you have to allow social workers into your house at least once a week, a s49 GP physical assessment, capacity, psychological and financial assessments and NHS Continuing Care Assessments and Carers Assessments.

The evidence gathering continues and the next hearing date is set.

 

 

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12 Comments

  1. it is not even guilty until proved innocent – it is simply guilty from the moment the MCA is invoked.

    Reply

  2. Exactly Shirley, family carers ask for help, are targeted in secret, bounced and do not even get the chance to show how ridiculous, unfair, and untrue the allegations against them are.

    Under welfare applications without even a right of reply, a loving relation who has been with the vulnerable person all their life caring, worrying and sacrificing is cast as the loved ones enemy and abuser.

    The system including agents, courts and legislation is designed for this purpose to make all mentally vulnerable lucrative ‘care packages’ for life.

    This was the real intention of those that forced the MCA through parliament, but they only were able to do as it was as it was drafted, and that is that any decision making was a last resort, when a specific decision needed to be made in a person’s ‘best interests’, and after everything practical had been done to enable a person to make that decision, and then the least restriction action is taken but all this – the Act- is ignored.

    Instead the courts decide ‘best interests’ , capacity is not in respect of a specific decision, no one tries to get the person to make the decision in fact most do not even engage with their capacity assessment and the most restrictive measure is ordered- removal.

    And worse still not only is the whole of the Act being ignored, the basic tenet of justice and process, that an allegation, which allows the state into your home and takes you to court a s48 application and eventually removes your relative for life, need not be proved.

    The basic law of evidence is ‘he who asserts must prove’, if that is removed we as a nation are lost.

    Reply

  3. We. as a nation, are more than lost.

    When I walked into the Court of Protection (then the family division) I knew I was going to have a hard time, but believed I was up to it. When I walked out of the Court in September,I knew I had just been through a process that no civilised state could ever condone.

    It was simply a witch hunt against me as Martin’s mother. And for no other reason than they were allowed to do it. 480 pages from the LA listing what I had done wrong as a mother, and a letter from the Judge to Martin telling him what I had done wrong as a mother too. And as my position statement made clear to all I was not in Court as Martin’s mother (gave that up when he was 16) but as the person who held all his medical notes, with his permission, for his epilepsy.

    Reply

    1. And no civilised state should put you and Martin in the position you are now in.

      You, now an octogenarian, not allowed to be your sons RRP, despite being his mother, fighting non stop for him for over 10 years in the COP, to say nothing of bringing him up, loving and caring for him, and having his signed Lasting Power of Attorney.

      Martin being a perfectly normal, functioning now middle aged man except for his epilepsy, not a mental but neurological condition, neither of you given any locus standi, in a court created and remitted to protect the ‘incapable’ and prevent decisions being made on their behalf which they do not want.

      Complete nonsense.

      Reply

      1. Finola It is an Enduring Power of Attorney that I hold. It works very well for Martin and me, if people dont interfere and state it must be registered.

      2. Thanks for correction, but now it is in any event caught under the MCA ie could/can be set aside on the grounds of retrospective incapacity, as can all the Lasting Powers now created under the Act.

        This has got to be illegal but COPs are doing it with the help of Guardians Office, as MCA assumes capacity until disproved on balance of probabilities, so can only be deemed as ‘incapable’ at the moment of declaration not when signing Power.

        Best Wishes Hope you and Martin are Ok, Finola

    1. You are right Shirley about Powers of Attorney, they for hundreds of years have allowed the private control of a vulnerable person’s life and assets by their family and loved ones, with the check, if need be on private application to the Chancery/High Court.

      The MCA effectively removed control to the state, nationalsing/statifying private lives and property .

      Citizens are targeted declared vulnerable, made legally incompetent and the state chooses their Official Solicitor tick box representative.

      Allowing huge salaries for lawyers/administrators etc and the COP to seize billions and the state, through venture/capital ‘care’ control over vulnerable lives to make millions.

      And the public did not/does not know it is even happening until they or their loved one is seized, yet, it is done in their name, using their money.

      Reply

  4. They tried retrospective incapacitywiththe EPA, it didn’t work, EPA witnessed by a solicitor, Martin has capacity. Then the LA said I was the appointee, pretended the EPA didn’t exist, then said I hadn’t registered it and Martin did lack capacity, then had the DWP remove me as appointee (which I wasn’t) because I had not paid Martin’s contribution to his residential care home fees (which wasn’t true). So since 2014 the LA have been receiving all Martin’s benefits. However, they have only paid him his DLA not his lower mobility allowance of £20 something a week. With the EPA I have access to Martins bank account, so have evidence that no lower mobility allowance paid in. LA deny this categorically. RPR says she can not help. I hold the EPA original, and will only register it when I have an up to date time and specific capacity statement from a professional (Martin’s epilepsy consultant, who will not give a capacity statement, says he has always assumed capacity) So here we are, Martin and I, with an EPA that has worked for him since 2000, caught up in this corrupt system. Finally, corruption of corruptions, Martin went over his credit on his i phone, phoning his brother in Switzerland. When he goes over credit, I pay the amount he is in credit. I always have done. The Manager of the home heard Martin having a wobbly about this, and told him to change his password so I could not have access to his account to pay the credit. She said if he wanted to be independent he should pay his own bills. Martin did this – he changed the password so I dont have access to his account. This is where we are now.

    Reply

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