Dear Mrs Smith,

Your husband John Smith

I am writing to you about the capacity and best interests of your husband John Smith.

Any County Council has serious concerns about your husband’s welfare, and is considering whether an application to the Court of Protection may be necessary. This letter is written as part of what is known as the ‘Pre-Issue Stage’ in the Court of Protection.

The aim of writing to you is to:

The Court of Protection is part of Her Majesty’s Courts and Tribunals Service. Its job is to make decisions in the best interests of those who cannot make the decisions themselves. The Court of Protection sits at Any County Court, High Street, Anytown. You can find out more about the Court of Protection by visiting this website: www.gov.uk/courts-tribunals/court-of-protection.

If we do bring a case in the Court of Protection you will be one of the parties to the case. This means that you will have the right to question witnesses and address the judge, either by yourself or with the help of a lawyer. The court may arrange independent representation for John.

We are considering making an application to the court because we have not been able to resolve with you important questions about your husband John’s welfare.

As you are aware Sarah Kavanagh, John’s care manager and a social worker of this council has had several meetings with you to talk about how we can work with you to improve John’s care.

At the last meeting with you she discussed the following concerns:

We are therefore concerned that it may not be in John’s best interests to live with you. We think you are finding it very difficult to care for John and this could put you both at risk.

We will ask the Court to decide:

This decision will be taken by a judge of the Court of Protection after receiving evidence from us and from you, if you wish to provide evidence to the court.

We will only bring a case to court as a last resort.

We would like to attempt to resolve these issues by agreement if possible.

We intend to hold a ‘best interests meeting’ in two weeks time on 14 December 2016. It will take place at our offices at Any County Council, Town Hall, High Street, Anytown at 3.00 pm. You are invited to the meeting. Please let me know immediately if you cannot attend and we will see if an alternative date can be arranged. However I will need to know within seven days if the meeting has to be re-arranged; otherwise it will go ahead as planned.

I have invited the following people to attend the meeting:

Teresa Harlow will send us all an agenda at least two days before the meeting.

Yasmin Rashid would like to visit John before the meeting and she will contact you to arrange a convenient time. I hope you will be willing to arrange this.

If we are not able to reach agreement at the meeting I will write to you and explain what the next steps will be.

Please confirm safe receipt of this letter.

Yours sincerely

Agnes Brown

Senior Solicitor, Adult Social Care.

References in square brackets are to the page numbers in the bundle before the court

Essential re-reading:

1. I am the wife of John Smith who is the subject to proceedings by Any County Council. I will refer to him as ‘John’ in the rest of the statement.

2. I make this statement in order to provide information about my background, my relationship with John and my views as to his best interests.

3. The court will be aware that John is 33 years old and was born on [ ].

4. John and I met when we were both at university. We married when John was 23 and had therefore been together for 10 years. We have had a close and happy marriage until the injury sustained by John on 1 December 2015. Until then John worked as a computer programmer. I am a teacher but have been on compassionate leave since John’s accident.

5. I would describe John as an energetic person, who threw himself in to his work and sporting activities, especially swimming which he has always loved. Neither of us socialise very much and following our marriage we very much enjoyed spending time at home together.

6. Over the past five years we have been trying hard to have a baby. Sadly, up until now, I have not succeeded in becoming pregnant. However this period of time gave both of us an opportunity to reflect upon what we considered to be important. Both of us had concluded that being together and being part of a family was the most important thing for us both.

7. In recent years, we have spent much less time socialising with friends, and more time together, thinking about our future and spending time with our respective families, both of whom live near by. We looked forward to a future as a family, bringing up children together.

8. As the court will know, our lives were turned upside down when John was knocked over by a bus in December 2015. He sustained an acquired brain injury, which has led to a very severe impairment in his functioning. He has largely physically recovered from the physical injuries that he suffered. The problem is his complete change in the way in which he is able to manage and process information.

9. When I learnt of John’s accident I was absolutely terrified. I went straight to the hospital where he was treated, and the records will show that I spent the next week by his side, at a time when his prognosis was unclear.

10. I agree that I was very keen for John to be discharged home as soon as possible. John is still able to communicate. I feel that he communicates particularly well with those who he knows well and who are prepared to spend time with him. He has made it very clear to me that he wants to return home and as far as possible resume living with me.

11. I have read the statement of Miss Kavanagh, who sets out a number of concerns about my care for John. I will not deny that looking after John since the accident has been an uphill struggle. Although my own mother has dementia and I have helped support her with personal care, I have never had to be a full time carer before. John needs assistance in many areas, not so much with his physical needs but simply being prompted to do things and to keep him safe. Because John is quite mobile, you have to keep an eye on him all the time.

12. I have tried very hard to manage but I confess that in recent weeks I have felt absolutely exhausted. I accept that I became very upset in a recent meeting with Miss Kavanagh, because I felt that the help I was being offered to look after John was completely inadequate. I was basically being offered 14 hours respite a week. This was just not enough to allow me to get basic household chores done, carry out the shopping and have a breather.

13. I am aware that Miss Kavanagh put forward the possibility of John going to a day centre. I have been to the day centre that she recommended. I found it extremely depressing. Most of the people there appeared to have much more severe disabilities than John and I feel he would just be miserable there and would feel that I am trying to get rid of him.

14. I do not believe that John needs to go in to a specialist rehabilitation unit. I believe that the intensive rehabilitation that Miss Kavanagh believes he needs could be provided to him at home.

15. I am aware that the local hospital has a day unit where there is rehabilitation and I would be very happy for John to attend this as a day patient.

16. In the meantime I would be very happy to accept more support in looking after John, if only it could be offered. I believe that I can manage, but not if I only have a few hours a week additional support. I need to be able to carry out basic household tasks, and occasionally to be able to have a bit of a break, in the knowledge that John is safe, and doing something that he enjoys.

17. For example John has always been a keen swimmer. I have asked for an assessment to see if he could go to the local swimming pool with someone to help him and this has never been carried out. I believe that he would find this very satisfying, and I do not believe that it is impossible to put this in to effect.

18. Rather than move John away from home, where he is happy, I would ask that Miss Kavanagh reconsiders the level of support she is prepared to offer to John. I understand that the council is thinking of having a fact finding hearing which I am advised is rather like a trial of the care that I have provided. Instead of going down this route, I would ask that the council considers giving John more support to remain at home. The court could then review the position and see how things have proceeded.

19. I believe this would be fairer both to me and particularly to John to see if I can manage.

20. I have tried to explain to John what is going on, and he was recently visited by the solicitor instructed by the Official Solicitor. She was very sympathetic and John was able to communicate with her to some extent. However after she left when he realised that he might have to move and go somewhere else, he had tears in his eyes. I do not believe it is necessary or reasonable for John to have leave home at this stage unless all alternatives have been tried.

21. Therefore I ask that the Council think again about how they are prepared to support John and me at home.

The contents of this statement are true to the best of my knowledge and belief

Signed: [    ]

Dated: [    ]

Anyfirm LLP

Solicitors for Jane Smith

[Mr/Ms ]

Our ref: /005808.001

Thank you for agreeing to prepare a report in this case. You are instructed by the parties below as an expert on an application by the Any County Council for declarations in respect of the best interests of Mr Smith. The Official Solicitor was appointed Mr Smith’s litigation friend on 1 March 2017.

By virtue of an order on 2 April 2017 the Court has given permission to the parties to instruct you to produce an independent report in these proceedings. You have permission to see all records and documents filed in these proceedings and to examine Mr Smith and read his social work medical and other records.

Your report must be filed and served by 30 May 2017. If you have any difficulties with that timescale please let me know straight away.

The final hearing has not yet been fixed. There will be a directions hearing at the Court of Protection on the first open date after 6 June 2017. I will keep you informed of any further hearings.

I am the lead solicitor in this case to whom you should look for instructions and information.

(a) The applicant is Any County Council. The Council is represented by Mr James Burton, of Any County Council. Town Hall, Anytown. His direct dial is [ ] and his email address is [ ].

(b) The 1st respondent is Mr Smith. He currently resides at the address above, which is the matrimonial home he shares with Mrs Smith. He is represented by me instructed by the Official Solicitor as litigation friend. My details appear at the top of this letter.

(c) The 2nd respondent is Mrs Jane Smith. She resides with Mr Smith at the address above. She is represented by Mr Ian Brightspark, of Brightspark Solicitors LLP, High Street, Anytown. His direct dial is [ ] and his email address is [ ].

Mr Smith has an acquired brain injury, subsequent to a road traffic accident on 3 December 2015.

Please see my letter of today’s date which lists the documents which you have been sent. I also attach copies of Mr Smith’s records from Any County Council’s Adult Social Care Team. Copies of his GP records and records from Anytown Hospital will follow.

Mr John Albert Smith (‘P’) [DOB ]

You should note that the court has not made any findings of fact in this case. Mr Smith was born on [ ] and is thus 33 years of age. He achieved well at school and attended Any University where he achieved a degree in mathematics. Whilst at University he met Jane Marriott and they married in 2004. Mr and Mrs Smith have lived at their current address since April 2005. Mr Smith is known to have worked as a computer programmer and Mrs Smith is a teacher. Mrs Smith describes them as a couple who did not socialise much but enjoyed spending time together or with their respective families. Mr and Mrs Smith have no children but are believed to have been trying for a baby. Mr Smith was the victim of a road traffic accident on 3 December 2015, following which he sustained a brain injury which has resulted in a significant impairment. He is said to have made a good recovery from his physical injuries. He currently lives with Mrs Smith who is his main carer, with a care package provided by Any County Council; however following concerns about the quality of the care provided by Mrs Smith (set out in the statement of Ms Cavanagh at C1 in the trial bundle) the Council applied for permission to make an application to the Court of Protection.

These proceedings were commenced by the local authority who made an application (form COP1) on 10 March 2017. The application appears at page II 1 of the trial bundle. The local authority asked the court to decide the following questions:

Does Mr Smith have capacity to make decisions about where he should live?

The local authority set out the orders it sought:

A declaration that Mr Smith lacks capacity to litigate these proceedings, and to make decisions about residence, care and contact with others.

District Judge Bloggs granted permission on 1 March 2017. At the same time he joined Mr Smith as a party and appointed the Official Solicitor to act as his litigation friend, the Official Solicitor having consented to act. Mrs Smith had indicated that she intended to instruct solicitors and you will see that she is now represented.

The first attended hearing took place on 2 April 2017. A copy of the order is with your papers at B30 of the trial bundle. You will see that DJ Jones made interim declarations that Mr Smith lacked capacity to litigate these proceedings and that he lacked capacity to make decisions about residence, care and contact with others. A number of case management orders were made, including provision for your instructions at paragraphs 12 and 13.

The report of Dr Williams of 1 February 2016 contains Dr Williams’ view that Mr Smith has an acquired brain injury which has led to an impairment in his cognitive function.

Dr Williams’ opinion is that Mr Smith lacks capacity to make decisions about his residence, care and contact, and to litigate these proceedings and that there is no prospect of his recovering such capacity.

At the hearing on 2 April it became clear that all parties now agree that Mr Smith lacks capacity to make the decisions under consideration and it is likely that final declarations to this effect will be made at the next hearing.

Mr Smith has said consistently that he would prefer to live with Mrs Smith. You are referred to the witness statement of Ms Cavanagh at E13, where she describes her interview with Mr Smith and to my attendance note of my visit to Mr Smith, when he became quiet emotional at the prospect of leaving home.

The court is being asked to decide whether Mr Smith has capacity to make the following decision(s):

i)Where he/she should live (and consequential care arrangements).ii)Who he/she should see.iii)Litigation capacity in connection with the above areas.

The Mental Capacity Act 2005 s2(1) provides that a person lacks capacity if, at the time a decision needs to be made, he or she is unable to make or communicate the decision because of an ‘impairment of, or a disturbance in the functioning of, the mind or brain’.

The Act contains a two-stage test of capacity:

1.Is there an impairment of or disturbance in the functioning of, the person’s mind or brain?2.If so, is the impairment or disturbance sufficient that the person lacks the capacity to make a decision in relation to the matter in question (i.e. the matters set out above)?

The assessment of capacity must be based on Mr Smith’s ability to make a decision in relation to the relevant matter, and not their ability to make decision in general. It does not matter therefore if the lack of capacity is temporary, or the person retains the capacity to make other decisions, or if the person’s capacity fluctuates.

Section 3(1) of the Act provides that a person is regarded as being unable to make a decision if he or she cannot:

A lack of capacity cannot be established merely because of a person’s age or appearance or his condition or an aspect of his behaviour. Similarly a person is not be treated as being unable to make a decision merely because he or she has made an unwise decision.

Practitioners are required to have regard to the statutory principles set out in section 1 of the Mental Capacity Act 2005 and the Code of Practice when assessing capacity and making decisions on behalf of a person who lacks capacity.

The statutory principles provide that:

s1 (2) A person must be assumed to have capacity unless it is established that he lacks capacity.(3)A person is not be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.(4)A person is not to be treated as unable to make a decision merely because he makes an unwise decision’(5)An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or make , in his best interests(6)Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

The Code of Practice is available on line at www.publicguardian.gov.uk. [Hard copies are available from The Stationery Office]. A booklet entitled Making Decisions: a guide for people who work in health and social care is also available online at www.justice.gov.uk/downloads/protecting-the-vulnerable/mca/opg-603-0409.pdf

Paragraph 4.33 of the Code states that the MCA’s new definition of capacity is in line with, and does not replace the existing common law tests (including that for capacity to conduct proceedings, i.e. ‘litigation capacity’). The common law authorities on capacity to litigate continue to provide a helpful guide when applying the test in sections 2 and 3 in the context of litigation capacity.

The common law approach to litigation capacity has been considered and developed in a number of cases. The leading case is Masterman-Lister v Brutton & Co [2003] 3 All ER 162 in which Lord Justice Chadwick stated the following:

In the same case Lord Justice Kennedy commented as follows (at para 26):

He further observed at paragraph 27:

The Court of Appeal re-considered the Masterman-Lister test in Bailey v Warren [2006] EWCA Civ 51. At paragraph 126 of her judgment Lady Justice Arden set out the matters to be considered when assessing a person’s capacity to conduct proceedings:

In the case of The NHS Trust v Ms T [2004] EWHC 2195 (Fam) Mrs Justice Bracewell when considering the issue of litigation capacity stated the following:

In considering therefore whether or not a person has capacity to conduct the proceedings it is accordingly important to focus on the particular proceedings in relation to which the issues arise, the complexity of that litigation and the issues to be determined.

Mr Justice Munby stated in Sheffield CC v E & S [2005] Fam 236, para 34:

We draw your attention to the further observations of Mrs Justice Bracewell in her judgment in The NHS Trust v Ms T referred to above about the relationship between litigation capacity and decision making capacity where she said at paragraph 2:

At paragraph 5 of the same judgment she added:

In the case of Sheffield City Council v (1) E (2) S [2004] EWHC 2808 (Fam) Mr Justice Munby, having considered the judgment of Mrs Justice Bracewell referred to above, went on to observe:

The following factors/questions therefore appear relevant when conducting an assessment of litigation capacity:

(i)The test is contained in sections 2 and 3 of the MCA 2005 but informed by the common law approach to litigation capacity set out in the above cases;(ii)There is a presumption of capacity to litigate which can only be rebutted by clear evidence to the contrary;(iii)Capacity to litigate is an issue-specific test so that a person may have capacity to conduct some litigation but not other litigation. Equally a person may have capacity to litigate but not have capacity to deal with (say) the administration of an award of damages;(iv)The complexity of the particular litigation and the issues to be determined are significant;(v)All practicable steps must have been taken to help Mr Smith conduct the proceedings without success; it follows that you need to consider the assistance and help that has been given to Mr Smith so far in the litigation and whether there are further practicable steps that could be taken;(vi)Mr Smith must not be treated as unable to litigate merely because he makes unwise decisions;(vii)A person can have a temporary lack of capacity and a person’s capacity can fluctuate.

(1) The question is whether Mr Smith is suffering from an impairment of or disturbance in the functioning of the mind or brain which makes him unable to conduct the litigation.

The questions are:

(2) Whether Mr Smith is unable to understand with the assistance of proper explanation and assistance, the issues on which his consent or decision is likely to be necessary during the course of the proceedings? Relevant matters to be understood include the nature of the decision/consent, the reason why the decision/consent is needed and the likely consequences of deciding one way or the other or failing to make a decision.

(3) Whether Mr Smith is unable to understand the issues in the proceedings? It is important to note that a person may have the intellectual capability to instruct solicitors or to act in person, but difficulties in relation to the processing of information may prevent the giving of meaningful or reasoned instructions (which was caused by a delusional belief in the Ms T case) or arriving at a meaningful or reasoned decision.

(4) Whether Mr Smith is unable to retain information and advice given to him during the course of these proceedings?

(5) Whether Mr Smith is unable to use or weigh the information in the balance as part of the process of making the decision? The Code notes that a person can understand information but an impairment or disturbance may stop them from using it (para 4.22);

(6) Whether Mr Smith is unable to communicate with any advisors, with the legal representatives or with the court? It is only if a person cannot communicate in any way at all that he or she should be treated as unable to make a decision through inability to communicate (see Code at para 4.23).

The issue of capacity to make the relevant decision should be determined first. Only if the person is found not to have decision-making capacity will it be necessary to address the best interests issues.

The court is being asked to make a decision in Mr Smith’s best interests. You are asked to advise the court and (the parties) on what is in Mr Smith’s best interests given the circumstances outlined in this letter, in the documents accompanying this letter and from your own observations.

The term ‘best interests’ is not defined by the Act. MCA 2005 s4 however provides a statutory checklist of matters which should be taken into account and is set out below.

4 (1) In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of–(a) the person’s age or appearance, or(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.(3) He must consider–(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and(b) if it appears likely that he will, when that is likely to be.(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.(6) He must consider, so far as is reasonably ascertainable–(a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),(b) the beliefs and values that would be likely to influence his decision if he had capacity, and(c) the other factors that he would be likely to consider if he were able to do so.(7) He must take into account, if it is practicable and appropriate to consult them, the views of–(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,(b) anyone engaged in caring for the person or interested in his welfare,(c) any donee of a lasting power of attorney granted by the person, and(d) any deputy appointed for the person by the court, as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6).(8) The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which–(a) are exercisable under a lasting power of attorney, or(b) are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.(9) In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.(10) ‘Life-sustaining treatment’ means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.(11) ‘Relevant circumstances’ are those–(a) of which the person making the determination is aware, and(b) which it would be reasonable to regard as relevant.

Again you are required to have regard to the Principles and provisions of the Act and the Code of Practice when considering and providing your opinion on Mr Smith’s best interests (see in particular chapter 5 of the Code).

I hope the enclosures supply you with all the relevant documents. Please let me know if you need any further information or require clarification on any matters.

Please arrange to see Mr Smith. I am happy to arrange an appointment for you with Mrs Smith if this would assist. You will need to consider his social work and health records. You will need to speak to those responsible for his care. His care manager is Ms Cavanagh who can be contacted via the Council’s solicitors.

You will need to meet Mrs Smith and Mr Smith’s parents and father-in-law (his mother-in-law herself has dementia and it will not be appropriate for you to interview her). Having regard to section 4(7) in particular you should consider whether there is any other person engaged in caring for Mr Smith or interested in her welfare whom it would be practicable and appropriate for you to consult- for example other family members or social care professionals. If you need assistance in making arrangements to consult any other person please let me know. You should identify in your report all persons whom you have consulted during the course of your assessment.

Please provide a report covering the following areas:

Please advise as to Mr Smith’s best interests in the following areas.

1. Care(a)Please set out Mr Smith’s care needs. This should include the support needed in the following areas. If you are not able to comment on any of the areas below please say so:Mental HealthMaximising independenceDaytime activitiesLearning disabilityPhysical healthCultural

Additional to the documents referred to at (2) above I enclose for your ease of reference Part 15 (Experts) of the Court of Protection Rules 2007 and the supplemental practice direction together with a copy of guidance issued by Mrs Justice Pauffley in December 2010. I draw your attention in particular to rule 122 (paragraph 2 of the practice direction) with regard to the expert’s duty to the court and to rule126 (paragraphs 8-11 of the practice direction) with regard to the content of an expert’s report, and to paragraphs 8 and 9 of the December 2010 guidance.

It is essential to both your role as an independent expert and to the parties’ perception of your independent status that there are no informal unrecorded discussions or correspondence with anyone involved in the case, particularly when you come to interview others such as the social care staff, etc. If you need further information, please contact me as I am the lead solicitor and I will provide information after consultation with the other solicitors involved. If documents are exchanged with one party, please copy them to all the others. Where possible, communication is best achieved by fax, letter or e-mail copied to all the parties.

Please maintain a careful record of all discussions with all persons with whom you discuss this case in the event that it is necessary to refer to them later.

It will be helpful if you would confirm in writing to me who you would like to have contact with, so that all parties are aware that meetings will be taking place in due course.

If you require any help from me in arranging meetings or contacting the other solicitors, please let me know. Otherwise I shall assume that you will go ahead, organise visits and meetings, and will make your own arrangements. If at any time there is a delay in your plan and the timescale has to be altered, please inform me promptly so that I may inform the other parties and the court if appropriate

You should express your opinion regarding your findings on the facts of the case, but you must not seek to resolve disputed facts, as this is of course the job of the court at the hearing. Where appropriate, it will be of assistance if you are able to express your opinion on the basis of alternative findings regarding the factual disputes. Your report may be subject to challenge by any of the parties. It is likely that one or more of the parties may put written questions to you following receipt of your report.

I am under a duty to disclose your report to the court and to the other parties and I will circulate your report on receipt. If you believe, as a rare exception to the general rule, that it should not be disclosed to any party, please let me know and I will seek the court’s directions.

The following terms and conditions apply:

The fees for your instruction will be shared, in equal shares between the instructing parties. . Some of the parties are in receipt of public funding and your fees will therefore be met through their public funding certificates.

Ultimately your fees will therefore be assessed by either the court or the Legal Aid Agency (LAA) at the conclusion of the case as to reasonableness in terms of both hourly rate and time spent. The parties’ legal representatives cannot be responsible for any fees over and above those finally assessed and paid by the LAA.

On receipt of your invoice the legal representatives for the publicly funded parties are entitled to, and should promptly make a claim for payment on account of your fees to the LAA. Promptly upon receipt of such payment on account they should make this payment on account to you.  

Such payments on account may, however, be recouped by the LAA at the end of the case following the final assessment of the bill. Such recoupment will only apply to any sum, paid on account, which exceeds the amount finally allowed on assessment by the Court or LAA. If your fees are reduced on assessment we will notify you within 7 days of receiving notification from the Legal Aid Agency or the court. If you wish us to make representations with regard to the reduction then you should notify us within 7 days, and provide us with the text or those representations, or the supporting documentation as the case may be.

In accepting this instruction you therefore agree that if your fees are subsequently reduced by the court or the LAA you will promptly reimburse the difference between the amount paid on account to you, and the amount finally allowed on assessment,  to the parties’ legal representatives.

Please bear in mind that although we, as the lead solicitors in instructing you,  will do our best to assist you in obtaining prompt payment, we can only be responsible for the share of your fees attributable to our client. The other solicitors involved in this instruction to you are responsible likewise only for the share attributable to their client.

It is also important that during the course of your assessment you inform us immediately if you are likely to exceed your costs estimate. All public funding certificates have a cost limitation and we need to make an application to the LAA for any extension of this if it appears that the aggregate of the fees which are to be incurred in this case is likely to exceed the current costs limitation.. If you exceed your fee estimate without prior notification to us your fees may therefore not be met in full.

In addition, there are terms in the 2010 Unified Contract under which the publicly funded legal representatives must operate. In accordance with these if your fees are to exceed £250 you must keep accurate records of all the time spent on the work for which you have been instructed and of the work done. You must also permit the LAA to audit your records if necessary.  

There is also certain work for which the LAA will not pay and limits on certain hourly rates.

The LAA will not pay:

You should therefore ensure that none of these costs are included in your invoice.

This letter of instruction has been agreed between the parties instructing you. I should be grateful if you would acknowledge receipt.

If there is anything at all which is not clear please do not hesitate to contact me.

Yours sincerely

Felicia Anysolicitor

ANYSOLICITORS LLP

Our ref:

Your ref:

Name

Address

Date:

Dear

I am the property and affairs deputy for [X]. As deputy for [X] one of my duties is to ensure that appropriate testamentary provisions have been made on behalf of [X]. [X] is at present intestate/[X] has a will which has become outdated and I now wish to apply to the Court of Protection for the authorisation of a statutory will made on behalf of [X].

In order to make an application to the Court I need to obtain evidence that [X] lacks testamentary capacity. The relevant test to apply when assessing testamentary capacity is found in the case of Banks v Goodfellow which states that:

‘It is essential … that a testator shall understand the nature of the act [of making a will] and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect, and … that no disorder of mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made.’

You need only decide on the balance of probabilities whether [X] has or does not have testamentary capacity, in other words, that it is more likely than not. I also request that you pay particular attention to the following points, and indicate whether [X] understands them.

I attach outline details of [X]’s estate for your reference.

I have requested you prepare this report because [X] informs me that you have been [his/her] doctor for a number of years. If, however, in the course of taking a psychiatric history and conducting a mental state examination you consider a specialist report is required (for example from a psychiatrist or psychologist), please let me know.

If you are of the opinion that [X] has the capacity to make a valid will, I would be grateful if you would confirm this in writing and indicate if you would agree to act as one of the witnesses when the time comes for [him/her] to sign it. If you conclude that [X] lacks testamentary capacity please complete the enclosed Form COP3 ‘Assessment of Capacity’.

I confirm that we have agreed the sum of £[ ] For the purposes of the examination and preparation of this report. or Please provide me with a note of your fees for providing this opinion. In the unlikely event that you are required to give evidence at court a further fee will be negotiated. Please mark your invoice with the reference stated at the top of this letter.

If you require any further information or clarification on any points please do not hesitate to contact me.

Yours sincerely,

Natasha Molloy