A Respondent To A Deputy (Property And Financial Affairs) Application Asks For An Order That Will Ensure Payment Of Care Home Fees

By Georgina Baidoun – 12th September 2022

The Open Justice Court of Protection Project tweeted about this hearing (COP 13636992, before District Judge Thomas on 30 August 2022), reproducing the listing from CourtServe. It was listed as being about “(i) Whether a deputy should be appointed in respect of the property and financial affairs; (ii) Who that deputy should be.”

I was beginning to wonder if I was going to be given access to the hearing when, ten minutes before it was due to begin, I got an email:

District Judge Thomas has made the following comments regarding your requests to observe the hearing:
“Please could you ask in respect of both observers in what capacity they are observing”

I responded:

Please tell Judge Thomas that I wish to observe because I have had personal experience as a COP Deputy which has led me to want to find out more about the area. I also attend the COP Users Group meetings. I have no connection with this particular case. Depending on its content, I might want to report it for the Open Justice Court of Protection Project.

I then heard nothing for a long time, possibly 30 minutes, and so was somewhat taken by surprise when I was sent the MS Teams link. The only other person on screen was the Judge because, as she explained, it had proved impossible for the applicant to get access through MS Teams (possibly the cause of the delay) and he was, therefore, attending by phone. The respondent had mistaken the time of the hearing and was not able to be present.

The applicant was applying to become the Court of Protection Deputy for P’s Property and Financial Affairs. I wasn’t able to work out who the respondent was but her position statement (not sent to me) seemed to relate to the interests of the care home and the relevant Local Authority, so I assumed she represented one of them.(The Judge has since advised me that she stated at the hearing that the Local Authority did not at this stage wish to be joined and therefore were not involved; so I still don’t know who the respondent was).The position statement was part of a bundle referred to by the Judge which the applicant said he had not seen. The Judge said she would send it to him after the hearing, which she decided should go ahead despite the difficulties.

The Judge explained to the applicant that an observer was present (the second one having presumably abandoned the effort) and I thought she said that there should be “no recording or publishing of anything”. I was asked to check this by the blog editor (Celia Kitzinger), which I did, and the Judge replied as follows:

The observer may report on the case as long as the identification of the parties is not disclosed. The hearing was by Teams. Therefore, it is a requirement that any participant to that hearing is told they may not record or publish any part of any recording (whether that be oral or visual) as to do so is a criminal offence – that was the direction that was given.

The hearing

The Judge set out some of the matters in the respondent’s position statement. There was no doubt that P lacked mental capacity to manage her property and financial affairs, having recently been assessed and failed to respond appropriately to any of the questions put to her. There appeared to be no way in which P’s wishes could be ascertained but she had written a will which named four beneficiaries, including the applicant. As I understood it, the respondent had ‘nothing against the proposed Deputy’ but wanted assurances about how he proposed to act before withdrawing her objections.

The first issue was that only one person, possibly someone representing the care home where P was living, had been notified of the hearing (Form COP28: Notice of Hearing), yet there appeared to be several other interested parties (presumably including the other beneficiaries of the will).

Another issue was the question of whether P should be joined as a party to the application through a ‘litigation friend’. But the Official Solicitor had refused to act on the grounds that there ‘wasn’t enough money’ and there appeared to be no-one else with sufficient impartiality.

The respondent also questioned why the applicant had come forward to make the application at this particular moment. The Local Authority was concerned to recover, possibly by selling P’s house, the care home fees that it was currently paying, and the respondent wanted to know how the applicant proposed to act in relation to this. The respondent was also concerned about miscellaneous expenses that the applicant had originally paid but had more recently refused to pay, something the applicant refuted. (This seemed to be a trifling matter which might have made more sense in context.)

The respondent was therefore asking that, should the applicant be successful, he should be given a more than usually detailed order for which she had provided a draft. She also wanted the applicant to:

• Personally serve P with COP28: Notice of Hearing and explain to her what it was and who he was.
• Serve the application to other interested parties.
• File a statement showing his ability to act.
• Give details of the security bond to be provided.
• Provide details of P’s bank accounts and details of any money paid out of them (there was mention of a specific small sum of money, which I didn’t understand).
• Explain why he was applying to be a Deputy after having apparently been estranged from P for a number of years and having recently subjected P to verbal abuse (the applicant strongly refuted these allegations).

The Judge determined the timetable for making progress. The applicant was to make his statement within a month, the respondent was given approximately 5 weeks to reply, and the next court hearing would take place on 15 November.

The applicant pointed out that he had no way of accessing P’s bank accounts and the Judge assured him that a Court Order would give him the necessary authority. He then said that, on receipt of the promised bundle and the Court Order, he would consult a solicitor.

My thoughts

There were three issues that caught my attention because I had been in the same situation myself when applying to be Court Deputy, Property and Financial Affairs, for my mother.

First, on applying to become a Deputy PFA you are required to give a detailed statement of assets (Form COP1A: Supporting Information). There must be many people in this applicant’s situation, and mine, for whom a major reason for the application is to get access to precisely this information, so how can it be obtained in advance? Even with a Court Order giving permission for third party access you still need to know which financial institutions to approach. The best hope of making progress is either through a known contact, such as an accountant, or by getting access to P’s home in the hope of finding the necessary records there. For me it was a case of piecing together historic information scattered all over the house and, even then, I wasn’t sure whether accounts were still active or had been closed. I was relieved to hear the applicant say he would be consulting a solicitor who will presumably be able to help with this.

Second, you are required to tell P about the application. In this case the Judge referred to the Notice of Hearing, so it wasn’t clear whether the earlier required Notification of Application had been completed. This uses Form COP20A: Certificate of Notification/Non-Notification of the person to whom the proceedings relate) for which the guidance notes say:

Only the court can dispense with the requirement for notification. The requirement for notification cannot be dispensed with just because the person does not or appears not to understand. You must attempt to notify the person in a way that is appropriate to their circumstances for example using simple language or visual aids.

This strikes me as being an impossible task in many circumstances, especially when dealing with those whose lack of capacity is the result of dementia in old age. Not many people welcome talking to others about the details of their finances, much less being told that their money is being taken out of their control, possibly by someone whom they no longer recognize. When the social worker attempted to notify my mother that I wanted to take over her finances, my mother flew into a rage, which is entirely what I would have predicted, and which was certainly in no-one’s best interests. I wondered whether the verbal abuse of which this applicant was accused might have come out of such a confrontation. It’s almost as though the process sets up seemingly insurmountable hurdles on purpose and yet most people applying for Deputyships must surely be doing so in good faith and because there is no alternative.

Finally, there seemed to be an idea that the applicant would not be a suitable Deputy because there was no evidence of recent contact between him and P. No-one challenged my application but, if they had, I would have been in a similar situation. I was greatly concerned with my mother’s best interests and believe that I did a faultless job in that respect, but I was also, like the applicant, a beneficiary of her will and make no secret of the fact that I was keen to take care of her assets not only for her sake but for mine and that of the other beneficiaries. It seems to me that a Property and Financial Affairs Deputy is often also going to be a beneficiary to the will and, in such cases, is never going to be entirely disinterested. It should be remembered that, while P is alive, the Deputy has to provide a detailed annual report of all expenditure to the Office of the Public Guardian. I can only see the respondent’s concern for repayment of care home fees as grounded in a suspicion that the applicant would not acknowledge that these fees were owed, but nothing of the sort was mentioned in court.

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

Photo by Scott Graham on Unsplash