A property and affairs application: Observations about P’s role and who should pay costs

 By Georgina Baidoun, 20 October 2022

This was the first time I had observed a full day hearing.

In response to my request to watch it, I received the following email:

Please see the below response from Her Honour Judge Cronin.
“Could you say that we won’t start until 10 and I will need her to explain who she is before we start – this is an application for deputyship for property and affairs.”

Rightly or wrongly, I interpreted this as suggesting that no-one would knowingly want to spend their time like this! Seeing a glimpse of the judge’s sense of humour during the hearing, I think I was right.

I explained that I had been a Deputy for Property and Affairs myself and duly received the link. 

The judge introduced me to the others in attendance as an ‘experienced observer’, which I am fast becoming, who was aware of the rules of confidentiality. (I was not sent a Transparency Order.)

The hearing

The salient details for me were as follows.

P had been hospitalized several years ago and, having been diagnosed with dementia, had been discharged into a care home as a result of arrangements made by the Local Authority (LA). 

The LA didn’t seem to have made any attempt to find out whether she had any family, although in fact she had four children, one of whom was the applicant in the case. They had all become estranged from her some 25 to 30 years ago, after she had divorced their father and moved 250 miles away with the intention of establishing a new life for herself. 

The applicant P’s son, represented by Ms Naima Asif of Pump Court Chambers, said that he had first decided to look for his mother in 2016 but had had no success. He was inspired to try again when another member of the family informed him that his mother’s brother had died intestate and someone was needed to register the death, sort out the arrangements for the funeral and deal with the estate, of which P was the sole inheritor. In the process of taking responsibility for these arrangements, it was suggested to him that he might find his mother by getting in touch with the LA of the area where she was last known to have lived. This quickly resulted in a reunion. She had not really known who he was but she is reported to be happy to see him when he visits and when he takes her on outings.

He had then decided to apply to become the COP deputy for his mother’s property and affairs so that he could act for her as executor to his uncle’s will and ensure she obtained the benefit of her inheritance. 

Unfortunately, the timing of his reappearance in his mother’s life had led the care home and the LA to suspect that he had only sought out his mother so that he might benefit from the inheritance himself.

The respondent was one of P’s daughters (daughter A).  She did not cast doubt on the applicant’s abilities or trustworthiness but thought she would be better suited to the role, or should at least be joined with him as co-deputy. She was not in court and had apparently failed to attend a previous hearing too. She had also not filed a witness statement, as ordered at the previous hearing.

The LA was not a respondent but was ‘in attendance’, and legally represented by Ms Emily Price of Deans Court Chambers. The applicant’s barrister asked why it was necessary for the LA to give evidence since it was not a party to the application and did not oppose it. I haven’t recorded the judge’s response but Ms Price went on to take a major role in the proceedings.

Also present was P’s social worker whom the judge described as being there ‘to assist the court’ in respect of P.

The LA did not oppose the application but was concerned about whether the applicant would be able to perform the role of deputy and whether he could be trusted. 

The judge considered the size of the uncle’s estate, which was now P’s inheritance, to be ‘limited’. The LA took a different view, comparing it with the assets of most of the people they dealt with. (I felt this was a significant difference in perspective which had led the LA to act in a way that I personally found to be disproportionate.) The LA had also had concerns that the applicant intended to move his mother to a care home closer to where he lived, which they believed would be contrary to her best interests, but the applicant had now assured the court this was not his intention. Furthermore, he was not applying to be a deputy for health and welfare and so would not have the authority to make such a decision (which the LA must have known).

The LA had suggested that P’s assets would be in safer hands if the applicant were to be joined by a professional solicitor as his co-deputy, at least temporarily. The applicant was resisting this because of costs, as he wanted to maximize the benefits that his mother could obtain from her money in terms of treats, outings and other extras not provided as part of the standard care home package. 

The LA’s concerns came mainly from the social worker and the care home. The care home had been asked by the court to file a statement but had not done so. However, they were reported to have said that there had been far fewer visits and contacts than the applicant claimed. The social worker was concerned about P’s response when she was formally notified of her son’s application to take over the management of her finances (recorded on form COP20A about which I have given my opinion in another blog. The response P gave to this news was quoted verbatim and was a combination of distrust and confusion, as might be expected from someone with the degree of dementia described by the social worker as well as by the applicant and one of his sisters (daughter B) who had also visited. This sister was present for the latter part of the hearing and gave evidence in support of the applicant. The respondent (daughter A) was not known to have visited or made any contact despite claiming she was best placed to act as deputy. 

The social worker expressed concern that, if the applicant succeeded in his application, ‘they’ would not know what was happening to P’s finances until ‘the money had run down’. Questioned by the applicant’s barrister, she professed to know that the Office of the Public Guardian would be requiring an annual report and agreed that this ‘reduced her concerns’.

The LA’s barrister spent a great deal of time rigorously questioning the applicant’s evidence about the length of time he was estranged from his mother, whether he had really tried to find her before he discovered she had inherited money, and whether he had in fact visited and kept in touch with the care home as much as he said. He had already produced in his written evidence photographs of his mother enjoying outings on which he had taken her and had provided the dates, but Ms Price insisted that he find the originals on his phone and hold them up to the camera so the dates could be verified. She suggested that, if he wasn’t able to visit P more than two or three times a year, he was unlikely to be able to find the time to act as deputy. The applicant said that he hoped to visit more frequently in future but that it was a round trip of 500 miles and he had a business to run. There were also problems with the prohibitions and uncertainties of arrangements for visiting care homes as a result of the pandemic.

Ms Price went on to challenge the applicant about exactly how he expected to spend money to improve the quality of P’s life, for instance whether he had explored how he would find a paid carer to take her on outings between his and his sister’s visits. She suggested that a paid deputy would be better able to perform the role, which I personally doubt given that the duties concern property and affairs, not health and welfare. I really had to wonder whether this kind of questioning was appropriate. She also suggested that the applicant taking on the role of deputy would not be in P’s best interests because it would exacerbate the difficulties that had arisen between the siblings as a result of his application.

Some of these questions were also put to daughter B who joined the later part of the hearing. She had also visited her mother and said she made regular phone calls to the care home to ask about her welfare, although the care home was reported to have said her calls were ‘infrequent’. After hearing her responses, the applicant’s barrister noted that daughter B would seem to be an appropriate person to join with her brother as deputy; daughter B had said she was prepared to accept that role although she was not joined in the application.

Ms Price’s closing submission on behalf of the LA reiterated concerns about the lack of regular visits and how this would make it difficult for the applicant to understand P’s ‘day-to-day needs’. She also referred to concerns set out in the respondent’s statement which, because of her non-appearance, were not part of the hearing. She expressed the hope that the respondent’s relationship with her mother might improve over time (but since she had not seen her for the best part of 30 years and her mother’s dementia was getting worse, this hope could at best be described as unrealistic in my opinion).

The judgment

The judge gave an ex tempore judgment to be followed by a written decision, if requested, within the next few days. I have been told that no such request was made and therefore there is no written decision.

She rehearsed all the details of the case and said it was clear from the evidence provided that P lacked mental capacity to manage her own financial affairs. 

She had considered the respondent’s view that she could perform the deputy role at least as well as the applicant but noted that the evidence she had supplied mainly concerned P’s health and welfare, which were not the subject of this application. The respondent had also suggested that the applicant might misapply some of P’s funds, but this had not been raised at the hearing and the judge did not consider it likely. 

The judge noted that the LA was not objecting to the application but had ‘properly raised a series of questions which had expanded as the day went on’. Her opinion was that most of these questions had been satisfactorily answered and that the safeguards that would be provided by the oversight of the Office of the Public Guardian would be ‘more than adequate’. Importantly for me, she said that she was ‘placing no weight on’ P’s response to being notified of the application.

The judge said she was not concerned about further breakdown of relationships between P’s children as a result of the application because this would have no impact on P herself or on the applicant’s performance of his deputy duties.

In response to the issues raised about the geographical distance between P and the applicant, the judge did not consider that these would affect the day-to-day management of her financial affairs, which would normally be done on-line by whoever undertook the task. The applicant was clearly a trustworthy and competent business man and had demonstrated his on-line competence by the way he had participated in the hearing. 

The applicant had a closer connection to P than either the LA or the respondent and could provide the ‘personal touch’ that neither the LA nor a professional deputy could provide. The judge proposed that daughter B who had joined the applicant for the hearing should also join him as deputy, and she agreed to this. The judge hoped that this would reassure the respondent as well as being advantageous for P in making it more likely that at least one deputy would always available.

Costs

The general rule is that the costs of deputyship applications should be met from P’s assets, although there are exceptions: for example, see another previous blog, which reports on a case where, unusually, an applicant had to pay costs in a Property and Financial Affairs case as a penalty for wasting the court’s time.

In the current case, as in the one previously blogged, the judge was asked to consider making legal costs the responsibility of the party who had opposed the application and whose lack of engagement thereafter had prevented a possible earlier settlement. The respondent had refused to engage with solicitors, failed to file a statement when required by the court and failed to attend two hearings. The applicant’s barrister considered the position taken by the respondent in asking to be appointed deputy had also been unreasonable. 

Interestingly, despite the obvious parallels with the previous case about which I wrote, this judge decided not to penalize the respondent for her conduct. She made it clear that her decision was not affected by the respondent not having been legally represented. Instead, she made her decision based on what was known of the respondent’s circumstances, which suggested she would be unable to afford even a part of the costs (for the applicant’s legal representation only, which amounted to over £14,000). Also, if she were asked to pay, it would only exacerbate the already strained sibling relationships. This was the only point of difference I could see between the two cases. 

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