Ruling in DL v A Local Authority [2012] EWCA Civ 253, the appeal judges said that the Act had not taken away the High Court’s inherent jurisdiction to intervene to protect vulnerable adults.

Even though the Act had put in place a statutory mechanism to protect adults lacking capacity, the court could step in for the protection of vulnerable adults whose capacity had been impaired by coercion or undue influence.

As he dismissed the appeal Lord Justice McFarlane said it would have been open to parliament to include specific provision, “either permitting or restricting the use of the inherent jurisdiction in cases relating to the capacity to make decisions which are not within the MCA 2005”.

However, he continued: “In the absence of any express provision, the clear implication is that if there are matters outside the statutory scheme to which the inherent jurisdiction applies then that jurisdiction continues to be available to continue to act as the ‘great safety net’ described by Lord Donaldson [in the 2001 Re F case]”.

The case was brought by the local authority against ML’s son DL, who lived with her, following concerns that he was over-controlling of his mother’s life.

In the absence of any express provision, the clear implication is that if there are matters outside the statutory scheme to which the inherent jurisdiction applies then that jurisdiction continues to be available to continue to act as the ‘great safety net’ described by Lord Donaldson”

His behaviour was reported to include threats, telling her where in the house she could move and preventing her from going out, and trying to force her to move into a care home.

Despite ML’s request not to bring the case the local authority applied for an injunction restraining DL from interfering with his mother’s decisions.

Counsel for the local authority Paul Bowen argued the appeal was based on the “false premise” that the inherent jurisdiction argued for would permit the court to override the decision of any competent adult and ignore their fundamental right to autonomy.

He said the case was limited to individuals falling outside the Mental Capacity Act but who nevertheless have not given or cannot give a ‘true consent’ to a particular aspect of their lives “not as a result of mental incapacity but for some other reason, such as the undue influence of a third party”.

Referring to pre-legislative work identifying to the risk of elder abuse, McFarlane LJ said there was “sound and strong public policy justification” to maintain the court’s inherent jurisdiction in cases not contemplated by the Act.

However, he said, the protection available under the inherent jurisdiction should not be limited to the elderly but extend to all vulnerable adults.

Defining the protected group was not easy, he concluded, saying that it should be left to the common law whose ability to “develop and adapt its jurisdiction, on a case by case basis, as may be required, may meet this need more readily”.

To avoid going to court you should formerly set out your share from the outset. Come to Partridge Allen we will assist you with this.

Also did you know that the Assets of many people that die extend far beyond those which are known to the Executors/Next of Kin and in order to be certain for the purposes of an application to the Court for a Grant of Probate a search should be made in the registers maintained by various public bodies to establish the fact of the existence of those assets and their respective amounts without which liability for the taxation of the deceased’s estate and the distribution of that estate amongst beneficiaries by the Executors may be the subject of a costly claim by the Revenue or disappointed beneficiaries.

To establish the bona fides of the people searching the above registers national search providers will normally only accept instructions from Solicitors as a matter of course because of issues of privacy and legitimacy of those seeking such information.

Where we are instructed to deal with the winding up of an estate we will make searches in the relevant registers for assets of the deceased to correctly establish the assets of the deceased person and will where necessary instruct Title Research Organisations to find missing beneficiaries including those who might otherwise be presumed to be deceased.

Trust your Solicitor to handle the estate of your loved ones .Trust Partridge Allen.

Recent research has revealed that just under half of people who have used legal advisers to obtain probate of a deceased’s estate have used a solicitor many of whom are local to their homes, with only three per cent seeking legal assistance from banks.
This comes as no surprise to us given that the cost of using the professional services of a solicitor to wind up the estate of the deceased has decreased compared with the ever increasing cost of using banks who often charge a substantial percentage of the value of the deceased’s estate.
Solicitors costs are often driven by time spent rather than a percentage of the estate, or sometimes a combination of both depending on the complexity of the deceased’s estate. Consumers should shop around in search of better deals which will inevitably be given by smaller local firm’s such as Partridge Allen than larger City Centre practices or multi office organisations.
Use an expert with professional indemnity insurance as a safeguard
Use a Solicitor Use Partridge Allen our personal service is second to none you will also be pleasantly surprised by the amount of our fees.

Whether it is a simple Will, a Will containing complex provisions or changes to long standing wills, we are here to help by giving you straightforward advice and assistance. Our fees are competitive.

There are more aspects to will writing than you would imagine and it is our expertise that can bring these important issues to light for your consideration. We will advise you on various issues such as will trusts and protective property trusts (for example to avoid all of your home being used for care fees) as well as anything else that we believe you may need in order to make sure that all of your estate passes to those people who you wish to inherit it.

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Partridge Allen Solicitors is a Partnership and is regulated by the Solicitors’ Regulation Authority of England and Wales – SRA Number 62844. The rules of the Solicitors’ Regulation Authority can be accessed at www.sra.org.uk.