Office of the Public Guardian steps in when attorneys don’t agree

By Georgina Baidoun, 5th September 2022

The Open Justice Court of Protection Project tweeted about this hearing (COP 13900828, before HHJ Lloyd-Jones on 24^th August 2022), and reproduced the listing from CourtServe.  It was listed as being about “Discharge or conduct of deputy or attorney” and the application was by the Public Guardian.

I have a particular interest in cases involving the Office of the Public Guardian (OPG), having had to answer to them when I was the Court of Protection Deputy for my mother’s Property and Financial Affairs. 

It was not clear from the listing whether this case concerned Deputies or Attorneys, or whether it concerned Property and Financial Affairs or Health and Welfare. It turned out to be Attorneys appointed under a Lasting Power of Attorney for Property and Financial Affairs.

This is the fourth case I have observed and each one has started differently. This was my first time using the Cloud Video Platform and I was worried it might not be as easy as Microsoft Teams but, using the recommended browser on my computer, there was no problem at all^[i].

Also for the first time, the response to my request to observe was answered, in the affirmative, with questions from the Judge as to whether I had “any connection with the case and any particular reason for wanting to observe...”. I replied that I had no connection and that:

“I have a general interest in matters concerning Deputies for Property and Financial Affairs having been one myself until my mother died last year. Most recently I have observed a couple of Deputy cases and written about them for the Open Justice Court of Protection blog. It is not my particular intention to write about this case.”

When the hearing began

The reason I had no particular intention to write about the case was that, at that point, I still had no idea what it was about. Before the Judge appeared on screen and the hearing officially started, two barristers were engaged in a conversation that I assume was a continuation of a meeting that had just taken place between the participants. Already I was in a guessing game as to what was going on!

When the Judge opened the hearing, she introduced the two observers and mentioned my connection to the Open Justice Court of Protection Project. She explained to the participants that  we were there to “observe the process” and had no personal interest. She reminded us that we had a “duty of confidentiality”, but there was no further detail and no Transparency Order was mentioned (nor have I since received one). She also offered no introduction or summary of the case, apparently making the assumption that the process could be understood without the content. It didn’t help that two of the respondents were labelled as ‘guests’ on the screen.

The hearing

This is what I think it was about. P had written a Lasting Power of Attorney naming his wife and three children as Attorneys for Property and Financial Affairs, either jointly or separately (see below). As one of the sons put it, his father had appointed them all because he wanted them to work together and it would be ‘shameful‘ if they couldn’t do that. P was now in a care home where they wanted him to be able to stay, but the relationship between the Attorneys had broken down over the expenses that P’s wife said she needed to maintain herself and the house that she had previously shared with P.

The OPG (the applicant) was represented by Marisa Lloyd of Parklane Plowden Chambers. P’s wife was represented by Natasha Dzameh of St John’s Chambers (the wife was present in court but did not participate). The children were not legally represented (i.e. they were litigants in person).

The Judge, much later in the hearing, referred to inappropriate complaints that had been made, presumably by members of P’s family, against the Office of the Public Guardian for not overseeing the work of the Attorneys. This is not part of the OPG’s role so it would appear that the only action they can take in such circumstances is to ask the Court of Protection to instruct or remove the Attorneys. The Judge said that P’s wife had originally asked that all four Attorneys be discharged and a professional Deputy be appointed instead, but that she had now said she was prepared to reconsider. The children did not want an ‘outside’ Deputy. 

The children said that the problem was that P’s wife had not been prepared to provide details of how P’s money was being used. Their father’s savings would have to part-fund his care home and they were concerned that his finances were not being well conducted. (This would suggest that the Attorneys were empowered to act separately and that P’s wife was in control of the finances) They appreciated that P’s wife needed an income but wanted it to be kept to a minimum to safeguard P’s own interests. 

The Judge proceeded to try to get agreement as to the way forward and decide on a timetable. P’s wife was required to produce details of her expenditure for the previous three months and make an assessment of future one-off house maintenance costs. Her barrister wanted time built in for her instructing solicitor (who would be on holiday) to work on these but the Judge did not accept that there was any need for the solicitor’s involvement in such a straightforward task. After the information had been provided, there would be 28 days to decide whether the Attorneys could agree and, if they couldn’t, another month for witness statements in preparation for a further hearing around the end of the year. The Judge reminded the participants that it was possible for them to reach agreement among themselves and inform the court right until the last minute (‘up to the court door’).

The Judge then summarized.

• It was good that all acknowledged the need to work together to achieve what was in P’s best interests, which would include the interests of his wife.
• There was a need for compromise.
• There was a difficulty and potential conflict of interest in one of the Attorneys living in the house and benefitting from it but P would have thought of that when drawing up his LPA.
• There would be a need to balance P’s interests against those of his wife as his assets depleted.

Costs

One of the sons raised the issue of costs incurred by P’s wife in the employment of a solicitor and barrister, whereas the children, trusting the court and believing they were doing the right thing, had not seen the need to employ professional legal representation. In his view, the employment of a solicitor had not been helpful and P’s wife should have been prepared to fulfil her responsibilities as an Attorney without seeking outside help.

The Judge said that costs would be determined at the final hearing when it would be decided whether they would come from P’s money or be borne by his wife. She had already said that a solicitor was not necessary to help put together details of expenditure and she added that this early mention of costs was ‘forewarning’ to P’s wife of the possibility that costs might have to come from her own pocket. This I understood because it had been very much to the fore in the last case on which I reported. 

Conclusion

I have made an LPA for Property and Affairs myself and was conscious at the time that they are not without their difficulties. In this case, there is a real possibility that, as P’s assets reduce, either he or his wife will have to move home and reduce their standard of living. With the best will in the world, I am not sure how this could or should be resolved, and family conflict seems almost unavoidable. In my case I have chosen to include a professional as an Attorney, accepting that this will come at a cost. 

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. She tweets as @GeorgeMKeynes

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^[i] _{Editorial footnote: Some observers have experienced problems with Cloud Video Platform.  If you are observing a hearing using this platform (“CVP” in the listings) we strongly suggest reading the court’s own helpful guidance: How to join Cloud Video Platform (CVP) for a video hearing.  We’ve also put a link to this guidance on the home page of the Open Justice Court of Protection website (see point 4 under “How to access a hearing”. (CK)}