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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9348
Experience:  I have been practising for 30 years.
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I have been deputy mum a year now. Although I have to pay

Customer Question

I have been deputy for my mum for almost a year now. Although I have to pay the Court of protection to monitor me Ive never heard from them...
Today I contacted them for some investment advise as I find the financial side a nightmare. Mum has a considerable amount of money from a horrific accident 3 years ago which left her fully immobile and without capacity due to a severe head injury
In short I took mum away on a "bucket list" 7 night cruise in April to the Fjords and I did this alone - huge mistake it was a nightmare for me and I soon realised this is not a "job" for 1 person. Theres only me my hubby and my brother in our family so for next year (at mums request) we are taking her as a family on a cruise to the med. Sailing is far less stressful for mum as theres no airports or planes and all the disability issues that bringsWe initially looked at my brother going with her and 1 carer (3 cabins in total) however her usual carers "dont do holiday care" so it would mean hiring a stranger which would be difficult for mum to deal with. Long story short hubby and I have agreed to take time off from work (at own expense ) and we go as a family - still 3 cabins but no carer fees - cost of mum son and carer approx 11 thousand cost of mum son and daughter / hubby 9.5 thousand so a no brainer really. I need to point out that whilst mum has a lot of money we are ordinary people and neither my brother nor myself would normally be able to afford this kind of holiday so even with it coming out of mums funds its cheaper than taking carers, mum is with family, we become her carers for the duration of the "holiday"
Court of protection have told me I have to pay for myself and brother has to do the same! How can this be right? This is cheaper than carers going, its better for mum as shes not with strangers, no way on earth am I going to send my mum on a holiday with someone I dont know or have any knowledge of - If we cannot do it this way mum cannot have a holiday how is that looking after her best interests?
The only restriction on mums order from COP is that I cannot buy a propertyCan someone please advise if possible?Thank you in advance
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.

Before I got to the point about the court of protection saying that you had to pay for yourself, I was thinking that as I was reading your question.

In the past, would your mother have gone on these kind of holidays herself?

Customer: replied 1 year ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Customer: replied 1 year ago.
Hi Before her accident mum used to enjoy 2 foreign holidays most years with her husband. Mum lost her hubby just before her accident so we are all she has now
She never cruised but always wanted to and its nicer for mums disabilities to cruise than fly and coach/taxi transfers etc
Customer: replied 1 year ago.
mum is a wheelchair user and so a beach holiday is awkward as you cannot take wheelchairs on beaches they are impossible to push
Mum has 640,000.00 in the bank from her accident
Expert:  F E Smith replied 1 year ago.

I’m sorry to have to tell you that the Court of Protection are correct in what they’re saying. I appreciate all the things which lie behind this, your mother is getting no benefit from any of this money and hence, he would be better off spending it to have some time with her children. However you are only allowed to spend money in the same way that your mother would have spent it and she cannot agree to that because she doesn’t have mental capacity which is why you are a deputy.

You would be able to claim reasonable expenses but accompanying your mother on a cruise or around the world trip would not be classed as reasonable.

The ironic thing is that when your mother eventually passes away, the only 2 people who take issue with this are the two potential beneficiaries, you and your brother and as you are both an agreement to do this, it’s unlikely indeed, impossible, for either of you to raise it as an issue later when your mother eventually passes away. However that’s not the way the court look at it. The court look at it that it is your mother’s money and you are merely the custodian to do things as your mother would have done. I fully appreciate also that if your mother did have capacity, she will probably share this with you and your brother but the court do not know that. The other reason is that this money is not only to pay for your mother’s injuries but also to provide for care for the and as you don’t know how long that’s going to take or who is going to provide it, this money may be needed in full later on. I am sorry, I wish I could give you a more favourable answer.

Can I clarify anything for you?

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We can still exchange emails.

Best wishes.

F E Smith and other Law Specialists are ready to help you
Customer: replied 1 year ago.
Thanks for your response. Im now absolutely worried sick. All I've ever done is look after mums best interests from my heart and Im now worried im going to jail!!! Please tell me I am not going to jail....
In light of your response it means mum will NEVER have a holiday and that cannot be fair to her can it? Could you please clarify if I could make an application to the court to be able to take her away as a family as I cannot beleive any judge would be so cruel as to not let us do this after all she will never run out of money she has full care now and its costing 10 k per year no way will she live another 62 years (to spend £620k)as she si 75 now and not in good health at allPleaseadvise
I will rate for you no worries
Customer: replied 1 year ago.
Apologies 64 years = £640,000.00
Customer: replied 1 year ago.
Hi could you please respond?
Expert:  F E Smith replied 1 year ago.

You are not going to jail. That is for a whole variety of reasons. Firstly, there was no criminal intent here, you quite reasonably believed that you could do what you were doing and you believe that you are acting in your mother’s best interest. Secondly, in the event that your mother passes away, the only complaint would be your brother and he was in agreement with this. Thirdly, there was no specific restriction in the COP documentation but it would be unreasonable to put every single scenario down.

I appreciate what you’re saying about your mother never having a holiday but it’s the disproportionate cost of the care over and above your mother’s holiday which is the problem.

You can make a formal application to the Court to have them sanction this using the very arguments that you have put with regard to the finances. Would also assist is if you had medical evidence to support what you are saying about your mother being unable to have the benefits of any other holiday such as would be requiring an aeroplane flight. You would need to show that your mother did routinely take holidays abroad, even by aeroplane.

There is another point which needs to be made and which is probably lost on the CoP staff and that is that whilst it may appear to them that you are off on a bit of a jolly funded by your mother, I am sure that looking after your mother is going to be quite intensive as you found when you tried it on your own.