I have written here a couple of times recently about cases in which someone looking after an incapacitated relative has abused their position, to their financial advantage. In Re SF a son looking after his mother’s affairs was described by Senior Judge Lush as “a callous and calculating attorney”, and in Re AFR a daughter looking after her mother’s affairs was found by Senior Judge Lush to have taken advantage of her position for her personal benefit.
Of course, in the vast majority of cases the caring relative does not take advantage, and provides an essential service that is to the benefit not just of the incapacitated relative, but to society as a whole. Such was the case in Re HNL, which I want to mention here both to give some balance to what I have said previously, and to highlight the wonderful job that caring relatives do across the country 24 hours a day, seven days a week, 52 weeks a year.
Re HNL revolves around Helen, who was born in 1962. Helen has suffered from epilepsy since she was nine months’ old. In 1994 and 1995 she underwent brain surgery. Unfortunately, the operations were unsuccessful and, as a result, she continues to suffer from intractable epilepsy and now also has profound memory loss, impaired executive functioning and intermittent serious complications following her seizures. She is largely dependent on carers and is unable to live independently.
After the operations Helen sued the NHS Trust for clinical negligence. The claim settled in 2006 for a lump sum of £600,000 plus periodical payments of £25,000 a year linked to the Retail Prices Index.
Since 1995 Helen has been cared for by her family, in particular her younger brother Adrian. In 2006 Adrian was appointed as her receiver. He then gave up his job as a team leader in a chemical manufacturing company, in order to work full time as her carer and case manager. At that time it was agreed with the court that he would receive a ‘gratuitous care allowance’ of £23,000 per annum from Helen’s income. He was subsequently appointed as her deputy for property and affairs in 2010.
In March this year Adrian, acting on the instructions of the Office of the Public Guardian, applied to the court for an order essentially confirming the above arrangements. The application once again went before Senior Judge Lush in the Court of Protection.
Senior Judge Lush directed Adrian to arrange for his provision of care and case management services to Helen to be evaluated and quantified in a report to be prepared by a professional brain injury case manager. Adrian instructed Judy Crocombe, a professional brain injury case manager and an occupational therapist. She found that the commercial value of the services Adrian is providing is considerably more than the actual payment he is receiving.
Her report concluded with the following:
“Adrian is providing an incredible service to his sister Helen, acting as her deputy, case manager, care support worker and care team leader. I have no doubt, from the information I am party to, that he completes this to a very high standard, which can only be an absolute asset to Helen.”
A representative of the Office of the Public Guardian also confirmed that Adrian “has given and continues to give a considerable amount of his time to care for [Helen]” and confirmed that the amount claimed by him appeared reasonable.
In all of the circumstances it is unsurprising that Senior Judge Lush was satisfied that it is in Helen’s best interests for Adrian to continue to provide care and case management services to her and that he should be paid an allowance of £23,000 a year.
There are many people like Adrian up and down the country who do an incredible job, in extremely difficult and challenging circumstances. We all owe an enormous debt of gratitude to them.
The full report of Re HNL can be read here.
Photo by Steven Depolo via Flickr