Common Law

[CYNthesys]

I'm trying to unravel some mental health law, see the link below.

These might be dumb questions, but here goes-

1. In the absence of any statutory provisions does common law automatically apply

2. Does the Crown retain responsibility for the protection of a mentally incapacited persons property until such time that that persons affairs are under the control of the Court of Protection.

Link to this speech Mr. William Clark asked the Attorney-General if he will list the statutory provisions governing the position of someone who, without the sanction of the Court of Protection, administers the property of another who is incapable of so doing on his own account by reason of mental disorder.

Link to this speech The Attorney-General There are no such statutory provisions, but it is a principle of common law that a person cannot validly administer the property of another who is mentally incapable. There are a number of statutory provisions designed to protect persons who act in ignorance of the mental incapacity, for example Section 5 of the Powers of Attorney Act 1971.
http://hansard.millbanksystems.com/written_answers/1974/dec/05/court-of-protection#S5CV0882P0-08905

[Tools]

Re: Common Law

No idea myself Cyn sorry, but posted to bump it.

[CYNthesys]

Re: Common Law

Have received legal advice, the answer to question 1 is YES

Seem to be struggling with question 2 though

[Paule]

Re: Common Law

Not sure whether this is any help at all

Not had chance to read it

MENTAL CAPACITY ACT
—————————
EXPLANATORY NOTES

PKea

[CYNthesys]

Re: Common Law

Thanks PK
Whilst the new mental capacity act requires that anything done on behalf of a mentally disordered person must be done in their best interests, there wasn't as far as I'm aware such a provision in MHA 1983. Before the mental capacity act came into force mental health law was a messy mixture of common law and statute
Basically I want to know who had responsibility for protecting mentally incapable persons and their affairs if that person/affairs was not under the control of the Court of Protection
Historically protection was afforded by the King

[CYNthesys]

Re: Common Law

Help please, does anyone have any thoughts on this?

As the Court of Protection (Civil Law) only protects the mentally disordered who have been adjudged mentally incapable, is it the Police and criminal justice system who take responsibility for offences against such persons who have not been so adjudged

[Amethyst]

Re: Common Law

If someone hasn't been adjudged as metally incapable can they be adjudged after the event to bring them within the protection of the mental health act ? Or is that not a possibility ? I have no idea if would effect retrospectively.

Otherwise I think it depends what the offence was who would be responsible.

[CYNthesys]

Re: Common Law

As far as the Court of Protection is concerned, it is a judge who rubber stamps whether someone is mentally capable or not.
If there is no enduring power of attorney in place, on receiving an application, the judge makes his decision after considering medical evidence.
The problem is that this is a very expensive process, and in the case of a mentally incapable person who for example has had their estate plundered, they have nothing left to protect and no financial means to be able to access the "services" of the Court of Protection.
A mentally incapable person(not under the COP) may be detained in hospital under a section (in which case their is no doubt of their incapacity), yet a secured lender can just comes along, decides it wants to realise its security, then helps itself

[tomterm8]

Re: Common Law

As far as the Court of Protection is concerned, it is a judge who rubber stamps whether someone is mentally capable or not.
If there is no enduring power of attorney in place, on receiving an application, the judge makes his decision after considering medical evidence.
The problem is that this is a very expensive process, and in the case of a mentally incapable person who for example has had their estate plundered, they have nothing left to protect and no financial means to be able to access the "services" of the Court of Protection.
A mentally incapable person(not under the COP) may be detained in hospital under a section (in which case their is no doubt of their incapacity), yet a secured lender can just comes along, decides it wants to realise its security, then helps itself

While this is true, there is an obligation of a social services agency to have one or more approved social workers with the power to make applications under the act(s) including an application for guardianship by the state OR to a third party.

From Halsburys law:

451. Applications by approved social workers.

It is the duty of an approved social worker

1 to make an application for compulsory admission to hospital2 or for
guardianship3 of a patient4 if he is satisfied that such an application ought to be made and, having regard to any wishes
expressed by the patient's relatives5 or any other relevant circumstances, he is of the opinion that it is necessary or proper for
the application to be made by him6.
However, before applying for a patient to be admitted to hospital, an approved social worker must interview the patient in a
suitable manner and satisfy himself that in all the circumstances detention in hospital is the most appropriate way of
providing the care and medical treatment of which the patient stands in need7.
An approved social worker cannot apply for admission for treatment8 or for guardianship9 if the patient's nearest relative10

has notified him or the local social services authority by which he is appointed that the relative objects to the application
being made; nor can he make such an application without consulting the person, if any, who appears to be the patient's
nearest relative, unless it appears to the approved social worker that such consultation is not reasonably practicable or would
involve unreasonable delay

11. Further, if an approved social worker applies for a patient to be admitted for assessment12, he
must, before or within a reasonable time after such application, take such steps as are practicable to inform the person who
appears to be the patient's nearest relative both of the application and of the relative's power to discharge the patient13.
However, it is the duty of a local social services authority, if so required by the nearest relative of a patient14, to direct an
approved social worker to consider the case with a view to making an application for admission to hospital, and if the

approved social worker decides not to apply he must inform the relative of his reasons in writing15.


Exercising this power forms a binding duty when a person is otherwise incapable of obtaining the protection offered by the Court of Protection due to financial problems, as a result of the human rights act 1998.

[CYNthesys]

Re: Common Law

Thank you for that info.
There was an ASW, but the relationship with him had completely broken down. (another story)
There were no arrears on the Loan account, but the Bank foreclosed as soon as it was put on notice that the mortgagor had lost capacity.
The lender knew the debtor was mentally incapable and that a COP receiver needed to be appointed (this is recorded within their databases), yet they instructed LPA solicitors to dispose of the patients property. As the property was non-domestic and was unregistered land the bank simply relied on the Charge's contractual powers, even though the mortgagor had lost contractual capacity.

[CYNthesys]

Re: Common Law

The legal charge conferred irrevocable powers on the Bank
It must be considered dishonest to rely on such powers knowing that the property owner had lost capacity

[tomterm8]

Re: Common Law

Was the contract entered under English law? Can you type up the actual wording of the clause that allowed them to reposess the property?

[CYNthesys]

Re: Common Law

Yes the contract was under English Law.
It contained the clause - borrowings are repayable on demand, at any time

Is it the irrevocable powers clause that needs typing up?

[CYNthesys]

Re: Common Law


Power of Sale
9(c)
The Owner hereby irrevocably appoints tha bank and any receiver or receivers appointed hereunder jointly and also severally the attorney and attorneys of the owner for the owner and in his name and on his behalf and as his act and deed or otherwise to sign seal deliver and otherwise perfect any deed assurance agreement instrument or act which may be required or may be deemed proper for any of the purposes hereof.

[tomterm8]

Re: Common Law

eh, what were the purposes?