Who should take responsibility for property and financial affairs – the Local Authority or the family?

By Georgina Baidoun, 5th August

My interest in the Court of Protection is inspired by my experience of being appointed by the Court of Protection as Deputy for my mother’s property and financial affairs. I therefore jumped at the chance to observe this remote hearing in front of District Judge Eldergill, tweeted by the Open Justice Court of Protection Project like this:

The arrangements couldn’t have been more straightforward. I was asked to agree to abide by the non-disclosure rules set out in an email and sent the Local Authority’s position statement. Being the first to join the MS Teams meeting, I was then welcomed by a very relaxed and friendly person responsible for administering the hearing. She seemed to encourage me to remain unmuted and on camera but I thought muting was a better option. I did, however, remain on camera, only unmuting when the Local Authority barrister asked who I was before the hearing and when the Judge greeted me at the start.

The case was to decide who would be responsible for managing the property and financial affairs of a woman with a diagnosis of schizophrenia who was currently in a mental health facility, but judged ready for discharge if there was a suitable place for her to live. I understood from what was said in court that she had not lived in her own house since 2019 and it was, by all accounts, now uninhabitable due to extensive, damage including a leakage of water. 

The case was described in the listings as P v London Borough of Newham, P being the woman whose property and affairs needed to be administered by someone else due to her lack of capacity to do so herself. The Local Authority was seeking a court order so that they could take on this role but P’s mother had objected to this arrangement, while being unable to take on the role herself due to ill health. The Local Authority position statement in fact described the case as being between London Borough of Newham and P’s mother.

Neither P nor her mother was in court, neither were they represented. P’s two sisters were in court although they were not named as parties (they were linked only by phone, I think, since they couldn’t see any of the participants). I was confused about which of the sisters was speaking at any one time but it appeared that they were in the same room and probably sharing the same phone as they were clearly consulting each other at certain points in the proceedings.

District Judge Eldergill opened the proceedings with a summary of the situation. There was an on-going Deprivation of Liberty application being considered, with the next hearing listed for September 2022. P was apparently resisting attempts to move her out of the NHS facility, but the facility was anxious to discharge her as soon as possible in order to release a bed. I wasn’t clear about the financial aspects of this but I imagine that there would be no charges while she was under NHS care, whereas she would be paying some, if not all, of her own costs when she left (assuming she’s not eligible for Continuing Health Care funding). I am almost totally ignorant of this area, however. 

P was said to have very little in the way of savings but she owned her own house which would have to be sold. The idea was that the money from the sale of the house would cover the cost of a flat in which she could live with the support of carers. The option of moving into supported living accommodation was ruled out as P was resistant to it, having already had one bad experience.

The position statement said that the Local Authority’s Client Affairs Team had ‘failed to engage’ the sisters with the idea of them taking over P’s financial affairs themselves by applying to be Court of Protection Deputies. That situation now seemed to have changed because both sisters were participating in the hearing. However, they seemed to have almost no understanding of what being a Deputy involved and were also unaware of the progress of the Deprivation of Liberty application, which the judge explained while making it clear that it was not a matter for discussion here. 

The judge then attempted what I thought was a poor explanation of what applying to be a Court of Protection Deputy involved. He emphasized here, and later on, the importance of obtaining an insurance policy to cover possible misuse of funds. Later on, he even suggested that obtaining this insurance could add to the time taken to get the Deputyship put in place. That was not my experience 3 years ago when I discovered that, despite being told ‘other insurance providers are available’ there was only one provider and the insurance was paid as part of the process of receiving the court order. In my view the insurance, which is paid from the money being administered, is the very least of a Deputy’s problems.

One of the sisters asked about outstanding bills. The Local Authority’s position statement  said that P had refused to pay for costs arising from her supported living accommodation prior to going back into the health care facility, so I imagine this was one of the bills about which she was concerned. The sister said she had thought that the Local Authority had been managing the finances and was clearly not aware that, until there is a court order, no-one is able to access someone else’s funds. The Local Authority did say that they had become DWP appointees, however, so had been receiving whatever benefits P was entitled to. The sister quite naturally wanted to know what had happened to this money but the judge said it was not a matter for the court. The Local Authority said something about it having been sent to the health facility where P was currently a patient – but that didn’t make much sense to me, unless it was a small sum suitable only for personal expenses.

The sisters were also concerned about other bills, I think. From my own experience, during the three years that my mother was unable to manage her finances and was still living in her own home, almost no bills had been left unpaid because essentials were on direct debit or standing order, but I can see how it might be a major concern. This is the problem when people do not set up a Property and Finance Lasting Power of Attorney in advance, appointing someone to manage their affairs when they lose capacity to do so.

I can’t help feeling that there is a serious gap in the law which is supposed to ensure the best interests of someone who has been judged to lack capacity and yet (in the absence of an LPA) leaves their property and finances in limbo until another quite separate and lengthy legal process has taken place. I was very lucky that my mother’s house was not vandalized, as P’s house obviously had been.

The sisters clearly didn’t want the Local Authority to act as Deputy and hesitantly agreed that they were prepared to take on the role themselves. They asked how this would proceed. The judge said they would be sent forms (again repeating the need for insurance, which is not part of the application process) and my heart dropped as I considered how long the process would take – currently 4-6 months. However, it was later agreed that the application, once completed, could be put before an urgent business judge. 

The Local Authority wanted assurances that P’s house would be sold. They were concerned that no bills had been received from the health facility but were to be expected (which I don’t understand since it’s part of the NHS). The sisters wanted the option of renovating the house before selling but the judge said time was of the essence, as the health facility had wanted to discharge P since the beginning of the year. Unless the house was sold there would be no money for a flat, which he said was clearly the only thing that would make P happy about leaving the facility. The sisters agreed but still thought the process couldn’t happen quickly. The judge didn’t think selling would be a problem since there was a shortage of houses on the market at present. To my mind, this did not take into account the condition of the house. My mother’s house wasn’t in anything like as bad a condition as P’s house and yet people were unwilling to buy something they couldn’t move into immediately. That’s not to mention the time the legal process seems to take these days. It also didn’t take into account how difficult it might be to buy or rent a suitable flat for P in the current market.

The judge suggested that the sisters should prioritize finding a solicitor and estate agent. Again, I thought of the timescale in my own case, with no estate agent being prepared to put the house on the market until the Deputyship order was agreed, but then it seems this order will be expedited. 

There were also problems with one of the sisters being busy at the moment, moving house herself, and a suggestion that the Local Authority might act as Deputy in the short term. The sisters were against this idea because they didn’t trust the Local Authority, which they believed was responsible for the water damage in the house. No details were given but, again, I wonder if the sisters understood how powerless everyone is without a Power of Attorney or Deputy order.

I was concerned when the judge, returning to the Deputyship application process, referred only to form COP4 (and the insurance, again) and said that he expected the Local Authority to provide it for the sisters to complete. This is only one of several forms that comprise an application, being the one in which the applicants agree to take on the role and say how they will act in P’s best interests. Other forms include the application itself, a statement of assets, and, hardest of all in my case, the ‘assessment of capacity’ which has to be completed by a professional; it took me two months to get mine. There are also forms to be sent to interested parties to get their consent, which is presumably the stage in the Local Authority’s application at which P’s mother had intervened, leading to the current hearing. 

The Local Authority responded by saying that their normal process in such cases was to guide people to the Court of Protection web site for the necessary forms. The judge seemed happy with this and I was left wondering if there had been a serious failure of understanding. It seems likely that the judge expected the sisters to be able to in some way piggy back on the existing application made by the Local Authority. That raises questions with me about the legal process but, also about the Local Authority’s willingness to help. In my own case, the Local Authority gave me no option but to apply to become Deputy and, having thrust the role upon me, offered me no help whatsoever, not even referring me to a website! I worried that the sisters were being cast adrift.

This feeling was strengthened when the judge once again mentioned insurance and one of the sisters was prompted to ask how costs would be reimbursed and would they need to keep receipts. From that I gathered that she still didn’t realize that being a Deputy means taking full responsibility for the person’s finances yourself, rather than claiming money back from someone else. The need to make an annual report to the Public Guardian had been mentioned in passing but I doubt if that was meaningful to the sisters at this stage. It certainly took me longer than an hour (the time taken for these proceedings) to get to grips with what was involved with being a deputy, understanding how deputies are held to account and the responsibilities and labour involved.

It was decided that the case would be revisited in the first week in September. I can’t say I’m optimistic that much progress will have been made unless the Local Authority take it upon themselves to provide the sisters with a lot more guidance than simply referring them to the Court of Protection website.

Georgina Baidoun was the lay Court of Protection Deputy for her mother’s Property and Financial Affairs until her mother died last year. Because of the difficulties she experienced with several applications to the Court, and with the Office of the Public Guardian in connection with her annual report, she has retained an interest in these areas, including attending recent Court of Protection Users Group meetings. She is keen to share her experiences in the hope that she can help others who have to engage with these institutions with very little help or guidance. The book Court of Protection Made Clear appeared to be a godsend but often failed to answer the actual questions that arose. She tweets as @GeorgeMKeynes