Does P have capacity to consent to sale of a house and move to residential care?

By Celia Kitzinger, 11th November 2021

Editorial update: Some of the ‘facts’ conveyed in this hearing turned out later not to be true. Check out the subsequent hearing in this case which corrects some of the ‘facts’ reported here: “Approving a conveyancing plan to move P to residential care“

“I have concerns over a whole host of things in this hearing – including whether this court has jurisdiction^[1]”, said the judge within just a few minutes of the opening of this hearing (COP 13841478 MF before DJ Geddes).

It was the second hearing I’d observed before this judge on a single day (5^th November 2021). I wrote a blog about the other one here.

The issue of immediate concern in this hearing was that the house P has been living in for 40 years has been sold at auction, with completion on  18^th November 2021.

The local authority (represented by Sophie Allan of Kings Chambers) had made an application on Tuesday – it was now Friday – to convey P to residential care.

P is not represented in this hearing. (Her sister is in court but I think I understood that she is not a party to the proceedings.).

The judge’s reference to a “whole host” of concerns was in response to the information that “P has expressed the consistent belief that sale of the property is not something she consented to and she considers it unfair and illegal”.

“She may be right about that – and therefore not delusional, and properly distressed by a process that has not been sensitive to her needs”, said the judge.

“What documents have been sought from family members to take advice as to whether this property has been sold properly?” she asked.

“The family saw the house sale as a private matter between siblings,” said counsel.  “It is only latterly that they saw it touched upon their duties to P as a vulnerable person.”

P’s sister’s account

The judge then asked P’s sister to explain “who owns the property, and who had to sign something to agree to the sale, and how much you get out of it”. 

P’s sister said:  “After Mum died, the house was put into probate.  Andrew [brother – all names are pseudonyms] is probably in a better position to explain because he was dealing with technical aspects of it, but her will stated that the estate should be split four ways between the four of us. The majority of the state is made up of the house. It had to be sold.  P signed the beneficiary form back in January to begin the process.  I realise now that P may not have understood the implications of that.”

Questioned further by the judge she explained that her brother and sister were executors and that she had not seen the will herself.  She reported that they had employed a solicitor and taken legal advice.

This was all “news” to the judge  – and also, apparently, to counsel for the local authority and to the social worker, all of whom had believed that the property was owned by P (jointly with her three siblings) “which it clearly wasn’t and never has been”. 

The judge was thinking on her feet as the facts unfolded.  “Some people know much more about this situation than I do – Andrew, and the solicitors instructed by him, and [other sister] who is joint executor of the estate. They surely must be invited – if not directed – to promptly provide information.  I will ask them to explain how we got here and what steps were taken to ensure that P had capacity to consent to the sale and what steps were taken in her best interests”. 

Recognising the need for P to be represented, the judge wondered aloud about getting the Official Solicitor on board, but that was apparently unlikely to be possible within the timescale for completion of the sale.  There’s “no time” to find a deputy either.

“The key to cutting through this is Andrew”, said the judge.  “If the sale doesn’t go through you could end up having to pay damages to the purchasers.  It’s all very well to say your solicitors would be liable for that, but who wants to sue their solicitors? Not me!  Did you have to sign anything else after those beneficiary forms?  (No). Anything about the date of completion and vacant possession?  Was P asked to sign to say that she’d vacate the property?”.

“I’m unwilling to put myself on the line”, said P’s sister.  “Andrew was until recently living in the house. He’s recently moved out. But my understanding is, no.”

Concerned with the question of whether or not P has capacity to make decisions about selling her property and moving elsewhere, the judge asked P’s sister for her opinion on this.

“P’s issues are so far undiagnosed, but the issues she’s been suffering from pre-date the death of our mother.  She’s been having delusions and she has an imaginary family, which she experiences every day.  She believes that all the financial issues will be resolved by celestial events.  She has no idea how to run her own life.  When Andrew moved out he left her with a credit card and she doesn’t even know how to use that to buy food, and when he visited a week later she said she was hungry and hadn’t been using the card.”

Capacity

The judge eventually made a brief interim decision that there was “sufficient evidence to get over the threshold for an interim declaration, notwithstanding the holes in the evidence”.  She was not assisted by the fact that the only diagnoses for P are historical diagnoses of depression and agoraphobia.  She had, however, been sent a COP24 and a capacity assessment from the local authority which evidenced delusional beliefs (along the lines described by P’s sister) which seem to have significantly interfered with P’s ability to understand, retain and weigh information.

Reading through the documentation, the judge reported that P “simply couldn’t answer” questions about her finances.  “She said ‘I don’t know’, cried, hugged herself, reported seeing Mama and Papa in the room, and said, ‘we are all ascending to another planet and we must be prepared’”.  She said she was receiving regular psychic communications from her parents in the afterlife.  She volunteered that her mother had made a second will, from the afterlife, and therefore the house sale was unlawful and said it was Satan’s law and probate is illegal and everyone owns their own homes.” On that basis, the judge saw reasonable grounds to believe that P doesn’t understand issues relating to the sale of the property or to decisions about where she should live.

The next hearing is at 10.00am on Friday 12^th November 2021.

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @kitzingercelia

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^[1] We are not allowed to audio-record Court of Protection hearings.  Direct quotations as accurate as I can make them, but are unlikely to be verbatim.

Photo by Kelly Sikkema on Unsplash