Sir Ranulph Fiennes and protecting the vulnerable

Sir Ranulph Fiennes case

Sir Ranulph Fiennes has been described by Guinness World Records as "the world's greatest living explorer". However, according to media reports, Sir Ranulph, now 82 and diagnosed with Parkinson's disease in 2020, has not been seen in public for nearly two years. Concerns have been raised about his welfare, and whether his attorney (his wife) is acting in his best interests. Relatives allege that their contact with Sir Ranulph is restricted and that he has been admitted to a number of care homes under assumed names following a family rift.

Reports in the media say that his family want the lasting power of attorney (LPA) removed from Sir Ranulph's wife. Concerns have reportedly been raised with the Office of the Public Guardian (OPG) (who can investigate concerns of abuse or allegations of misconduct regarding attorneys, deputies or guardians) and it is understood the Police are also involved. Reports have further suggested that Sir Ranulph was being deprived of his liberty without the necessary legal authorisation. Sir Ranulph's wife has not commented publicly.

The Mental Capacity Act 2005 - A simplified guide

In England and Wales, decisions on behalf of adults who lack capacity are governed by the Mental Capacity Act 2005 (MCA). The MCA is built around five core principles, set out in section 1:

1. Assume capacity. Every adult must be assumed to have capacity unless it is shown that they do not have capacity.

2. Support first. Someone cannot be treated as unable to make a decision unless all practicable steps to help them make the decision have been tried without success.

3. Unwise is not incapable. A person is entitled to make decisions others disagree with. An unwise choice is not, by itself, evidence of a lack of capacity.

4. Best interests. Anything done or decided for a person who lacks capacity must be done in their best interests.

5. Least restrictive option. Before acting, the decision-maker must consider whether the same aim can be achieved in a way that is less restrictive of the person's rights and freedom.

Is the person able to decide?

Capacity is complex and assessed decision by decision and at the time the decision needs to be made. A person lacks capacity if, because of an impairment of, or disturbance in the functioning of, the mind or brain, they cannot make the particular decision (section 2). Under section 3 that means they are unable to do one or more of the following:

• Understand the relevant information.

• Retain it.

• Use or weigh it as part of making the decision.

• Communicate their decision by any means.

Who decides and how?

Where someone lacks capacity, decisions may be made by carers and professionals acting in the person's best interests, by an attorney appointed under an LPA, or by a deputy or by the Court of Protection (a specialist court which makes decisions on financial, property and personal welfare matters for individuals who lack capacity). As part of the decision making process, the person's past and present wishes and feelings and their beliefs and values must be considered with appropriate consultation with family members and others interested in their welfare.

Attorneys making decisions under a LPA

An LPA allows a person to choose who will make decisions for them if they lose capacity. A health and welfare attorney can make decisions about matters such as living arrangements, day-to-day care and contact, but only when their loved one lacks capacity to make that decision themselves.

Being appointed as an attorney under a lasting power of attorney comes with significant responsibilities. Attorneys do not have carte blanche on decision making; they have a duty of care towards their loved one and must adhere to the strict legal duties under the MCA and its Code of Practice.

In summary, an attorney must:

• Act only in the donor's best interests, not their own, and not according to the attorney's personal preferences.

• Follow the MCA principles, including supporting the loved one to make their own decisions where possible and choosing the least restrictive option.

• Take into account the loved one's past and present wishes and feelings, and consult others with an interest in their welfare when making best interests decisions.

• Act within the authority of the LPA and any conditions or restrictions in it. It is important attorneys understand the basis of their appointment and what this means in practice. Multiple attorneys can be appointed to act jointly or jointly or severally.

• Avoid conflicts of interest meaning they should not take advantage of their position to gain personal benefits.

• Exercise reasonable care and skill and keep accurate records and accounts of decisions made to ensure transparency and accountability.

Deprivation of liberty

Article 5 of the European Convention on Human Rights protects the right to liberty. Where care arrangements for a person who lacks capacity amount to a deprivation of liberty (where they are under continuous supervision and control and not free to leave their residence) they must be lawfully authorised in a care home or hospital through the Deprivation of Liberty Safeguards (DoLS), and in other settings by the Court of Protection.

A person who is distressed, trying to leave, or cut off from the people they love may well be objecting to their arrangements. That objection may point towards a deprivation of liberty that needs proper authorisation and scrutiny.

How can VWV help?

At VWV, our Court of Protection team regularly advises families who are worried about the care or wellbeing of a loved one who has lost capacity. VWV can assist with:

• Understanding whether a loved one's attorney or deputy is acting within their powers and in line with their legal duties.

• Reporting safeguarding concerns with the Office of the Public Guardian (the OPG). The OPG can investigate where an attorney or deputy may not be acting in the person's best interests.

• Challenging care, residence or contact arrangements, including where a deprivation of liberty may not have been properly authorised. We involve the local authority (as supervisory body) where necessary. Safeguarding concerns about an adult with care and support needs may be raised with the local authority's adult safeguarding team.

• Apply to the Court of Protection. The court can decide questions about where a protected person (who lacks capacity) should live, their care, and who they should have contact with. It can also decide whether an LPA is valid, give directions about how it is used, and remove an attorney who is not acting in a loved one's best interests, appointing a deputy if needed.

Disputes of this kind are often complex, emotionally charged and can involve difficult family dynamics. Early, independent advice can help to resolve matters without the need for court proceedings, and ensures that an application to the Court of Protection is made promptly and on a sound footing where it is needed.

This article is for general information only and does not constitute legal advice. The facts of Sir Ranulph Fiennes case are not fully known and nothing in this article should be taken as a comment on the conduct of any individual.

If you are concerned about the welfare arrangements of someone close to you, have any queries with regard to a best interests decision or require further understanding of attorneys duties and responsibilities, please contact Louise Combstock or Vicky Ward for an initial conversation.