Alex RKThe Ministry of Justice consulted in 2021-22 on a potential mechanism to enable families seeking access to small funds belonging to loved ones who lack mental capacity. A new streamlined process would allow withdrawals and payments from cash-based accounts – up to a total value of £2,500 – without the need to get permission from the Court of Protection.
The impetus for this consultation came about in large part because of issues relating to accessing Child Trust Funds held by banks in the name of individuals who have now turned 18 and lack the capacity to make decisions about managing their property and affairs. I discuss this issue – and the legal complexities to which it gave rise – here.
The consultation response has now been published. In headline terms, the proposal for a new statutory scheme is not being taken forward, but (a) the reasons why this is the case; and (b) what Government intends to instead are both important. Both are set out in the Executive Summary, which in material part reads as follows:
8. While respondents felt there was a need to make improvements to the current CoP application process, there was little consensus on proposals for the design of the small payments scheme, the safeguards required, and withdrawal limits. Some respondents suggested adding features into the scheme that would have led to a very similar process to the existing CoP one.
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MCA principles
10. Through the consultation responses, it became clear that the lack of access to small payments has arisen due to issues with operational requirements in the current CoP application process and a lack of awareness of the MCA, rather than objections to the principles of the MCA. Respondents were concerned about the length, number and complexity of CoP application forms, the perceived costs of making the application, and the time taken to receive the court order. Adding to this, the worry and misapprehension that they will have to physically attend court and the feeling of being ‘judged’ may lead to people deciding not to apply for the legal authority they need. There was also a lack of awareness of fee remissions and exemptions that applicants could be eligible for.
Awareness of the MCA
11. Some respondents pointed out that a lack of awareness of the MCA has made it difficult for people to understand the need to have legal authority to access funds for the people they care for. For example, carers of children or young adults who lack capacity will need to have authority to make decisions on their behalf once they turn 18. But it’s become apparent that some parents and caregivers may not be adequately informed about the steps they must take to make decisions on their child’s behalf when they reach adulthood. Government recognises that this may be an issue particularly for families who are used to making decisions on behalf of their child who, by the nature of their vulnerability, may not encounter the usual milestones of the transition to adulthood, such as starting work or leaving home for university. This has left many parents feeling shocked and frustrated that they cannot access their children’s accounts once they reach 18.
12. Government considers that this lack of awareness – firstly of the need to obtain legal authority to access the funds of another adult, and secondly of the MCA more generally – is the root cause preventing people from accessing funds on behalf of another individual.
Operational barriers
13. Responses revealed that the causes of people not being able to access small-value assets are operational barriers in the current court application process. As explained, respondents commonly cited concerns about the length, number and complexity of CoP application forms, the perceived costs of making the application, and the time taken to receive the court order. Government considers that the best way to address these is to work with the CoP to improve the process in property and affairs applications.
The way forward
14. Court forms and processes are the responsibility of the judiciary, and improving service delivery and addressing concerns about the accessibility of the forms is a priority. This is exemplified by the steps that the CoP has taken with the changes in the application process for property and affairs deputyship orders. Over the past year, the CoP has been piloting the use of a new digital process and revised their notification requirements which has significantly reduced processing times (from 24 to 8 weeks). The digital process was rolled out to professional court users in January 2023 and the general public in February 2023. Part of this change involves allowing users to complete some of their court forms electronically and digitally submit remaining paperwork. To facilitate the changes, both digital and paper versions of the court forms are being reviewed to streamline and simplify content and remove
duplication wherever possible. This is an iterative process, and forms will be tested and continuously reviewed to make improvements based on feedback received.
15. These changes should make the forms more accessible and easier to complete, while also reducing application processing times. Government will obtain regular reports from the chief executive of HM Courts and Tribunals Service to keep the progress of these improvements under review.
16. To address the lack of awareness of the MCA, the Ministry of Justice will embark on a programme of awareness raising. We will engage with other government departments, financial service providers and charities so that the general public is aware of the need to obtain legal authority for adults lacking capacity, and in the case of 16/ 17 year olds who lack capacity, to do so in good time before they reach 18. Parents and carers of individuals who lack capacity interact with many different services and agencies, such as the Department for Work and Pensions, special educational needs and disabilities schools, banks and social workers. Engagement and joint working with these groups will be important to ensure that parents and carers have access to the support and information they need to assist the person
lacking capacity.
Conclusion
17. The Ministry of Justice believes that the CoP digital application process and raising awareness of the MCA will address the root cause of the problem (operational barriers and lack of awareness) and resolve many of the challenges raised by respondents to the consultation. As a result, the Ministry of Justice will focus on addressing the key barriers to accessing payments, and not seek to develop a small payments scheme. Taking these measures will ensure that we protect the legal principle that an adult must have proper legal authority to access or deal with property belonging to another adult, while ensuring that those who need to obtain that legal authority can do so in a straightforward and timely way.
Comment
As discussed here, I (and before me the Law Commission back in the 1990s) had significant reservations about the small payments scheme being proposed, and it is not surprising that the outcome of the consultation produced a choice: (1) recreate (in effect) a mini-Court of Protection; or (2) dispense with the core principles of the MCA 2005. In the face of this choice, to recommit to the principles of the MCA 2005 – and, also to commit to (much needed) public education appears to me to be by far the best course of action, so long as it is also combined with giving the resources to the Court of Protection that it requires in order to discharge its vital functions in a timely fashion.
In the interim, the following may be of assistance:
- The mythbuster produced by the National Mental Capacity Forum entitled “My child has reached 18 and can’t make their own decision: What should I do?”
- A sample COP1A to illustrate the sort of supporting information required to make an application for deputyship in the case of person with the benefit of a Child Trust Fund.
Separately, and noted almost in passing in the consultation response, it is clear that some banks / financial institutions have operated ‘informal’ or ‘exceptional’ policies to release CTF monies held on behalf of (now) adults to family members. Given the ringing (and accurate) endorsement in the consultation response of “well-established legal principle that an adult must obtain proper legal authority to access or deal with the property belonging to another adult,” I hope and anticipate that those institutions will consider carefully the basis upon which they are releasing such monies, and the advice that they are giving to the family members to whom they releasing it.
