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. 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.
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 email@example.com
 The hearing may well have embraced welfare powers although this wasn’t clear to me.