By Kirsty Keywood – 17th July, 2020
In many ways the legal issues discussed in the Court of Protection hearing I observed before District Judge Gray on 10 July 2020 (Case No. 13575629) are somewhat mundane. Two siblings were in dispute over who should assume the role of deputy in respect of an ageing parent, P, who lacks capacity to manage their finances.[1] One had applied to the Court to be appointed as sole deputy; the other (the respondent) had opposed on the basis that, having been estranged for a very lengthy period of time (over 10 years) from their parent, she now wanted “to be involved”, as joint deputy, in decisions about P.
Outlining the factors identified by former Senior Judge Denzil Lush in determining whether a deputy appointment was appropriate (including of course P’s wishes being of ‘magnetic’ importance; the willingness of parties to act; and the nature of the relationship with P) District Judge Gray invited the parties to establish their suitability. For the applicant, the lengthy period of estrangement as well as the respondent’s considerable geographical distance from the UK were obviously relevant here. Of particular concern to the Court, and undoubtedly very painful for the respondent to hear, were the past wishes of P not to have contact with the respondent and to make no provision for her in their will.
What became clear in the course of the hearing was that the respondent had no particular concerns about her sister’s ability to act as deputy but was rather upset at her own exclusion from decisions concerning P. The judge adjourned proceedings (for around 20 -25 minutes) in order that it be ascertained whether the applicant would be willing to share information about P’s accommodation and health with her sister on a regular basis. He also encouraged the respondent to consider whether, if there were some way in which she could be kept informed about her father, she would wish to pursue her objection to the appointment of her sister as sole deputy.
On resumption of the proceedings both sisters indicated that they were willing to compromise. The respondent would withdraw her objection to the application for appointment of deputy; the applicant would supply information (and photographs if P were willing) to her sibling. An order was to be drawn up to this effect.
Reflections
The case revealed a welcome input of pragmatism from a judge who saw that what was being sought by the respondent in this case wasn’t quite what the law was designed to address. The respondent explained that she opposed the appointment of her sister as sole deputy because she believed it would mean that she would never be able to speak to her father again or find out how he is. District Judge Gray took time and care to explain to the respondent that what she wanted would not necessarily be remedied by her appointment as a deputy and that there were considerable practical hurdles in the way of her being able to fulfil that role. In encouraging the parties to consider an alternative way forward to resolve their difficulties, the judge at least managed to give both sisters the opportunity to consider how they might achieve some of what they had wanted without further involvement of the Court. Fractured family relationships are profoundly difficult to repair when time has marched on to the extent it had in this case, although there had clearly been some accommodation of each others’ wishes in this case.
P was not represented at the hearing, although their wishes (past and future) were acknowledged. It wasn’t clear to me whether P was consulted about the possibility of the estranged daughter now having a renewed role in their life, whether as a deputy or in some other capacity, although this might have been due to be addressed at a later hearing. In ordering that the respondent may receive photographs of P, the judge made clear that this would only occur if P were “agreeable” to being photographed. The judge reminded all attending that the role of the Court in these proceedings is to make sure P’s voice was heard. I couldn’t help but wonder what P would have made of all this.
Kirsty Keywood is a Senior Lecturer in Law at the University of Manchester. She writes and teaches about how mental disability law and policy affects the lives of people with a mental health diagnosis or a learning disability. Check out her webpage here. She can be reached by email at kirsty.keywood@manchester.ac.uk
[1] The hearing may well have embraced welfare powers although this wasn’t clear to me.
Promoting Open Justice in the Court of Protection 
It’s sad but surprisingly common to find family dynamics and relationships / estranged members of family with disputes like this but fortunately it can be remedied and (if there’s a sensitive, tactful person like the judge in this case) usually without need for continued action.
My experience of this is mostly within residential care and crops up when an estranged relative or sibling is suddenly advised that Mum or Dad is going into permanent care which can spark some reaction and prompt a series of disputes. It often stems from the estranged sibling suddenly faced with fears they’re not longer relevant or even welcome in whatever decisions are made from that point onward.
In care it’s commonly the concern that Mum or Dad is being “dumped” into a care home when they (distant or estranged sibling) is entirely willing or able to step up and look after them instead. Seldom does it end in a real dispute and all out battle it’s usually a case of acting as a buffer between the relatives, explaining the circumstances about care needs, how much care is needed, the stress and immense strain of it being provided to a close family member at home without support and aiming to involve all concern in the long-term plans, welcome and encourage their involvement with open arms even if from a distance.
I agree with your thoughts about what P might have made of this and wonder most if and what substance is in the statement about her previously expressed wish she did not want contact and had not made any provision in her will? If this is the case and there is some evidence to suggest P was flat out refusing to allow the daughter a look in, I wonder if it would have caused difficulty and allowed sharing of information, photographs etc.
My initial feeling is maybe this was said by the sister in anger based mostly on experiences of a similar scenario.
Interesting blog I’m enjoying backtracking and reading all your posts 🙂
LikeLike