By Clare Fuller, 28th November 2022
As a consultant for Lasting Power of Attorney and an advocate for Advance Care Planning, learning more about the Court of Protection work and processes is important to me. I have attended previous hearings and found the experiences invaluable[i].
This hearing concerned whether the person at the centre of the case had validly appointed his sister and her husband with Power of Attorney.
A Lasting Power of Attorney (LPA) is a legal document that enables a someone to nominate a trusted person to speak for them if they ever lose capacity due to ill health or a sudden accident. There are two different LPAs, one for Health and Welfare and one for Property and Finance.
The key questions in this hearing were: (a) were the LPAs valid and (b) if not should a Financial Deputy be appointed and if so who?
I’ve written previously about “Capacity to make a Lasting Power of Attorney”. In essence, an LPA is only valid if it is made when a person has capacity:
| “To work out whether someone lacks the mental capacity to make a decision, you need to answer ‘yes’ to these two questions: Do they have a mental or brain problem that stops their brain or mind from working properly? Is that problem causing them such difficulty now that they are unable to make this particular decision at the time it needs to be made? Being ‘unable to make this particular decision’ means that the person can’t: understand relevant information about the decision that needs making; keep that information in their mind long enough to make the decision; weigh up the information in order to make the decision; or communicate their decision – this could be by talking, using sign language, pictures or even just squeezing a hand or blinking.” |
In a key case earlier this year concerning capacity to make an LPA (The Public Guardian v RI & Ors [2022] EWCOP 22 ), the judge helpfully laid out the relevant information that a person needs to be able to understand, retain and weigh if they have capacity. This information is:
a. The effect of the LPA.
b. Who the attorneys are.
c. The scope of the attorneys’ powers and that the MCA 2005 restricts the exercise of their powers.
d. When the attorneys can exercise those powers, including the need for the LPA to be executed before it is effective.
e. The scope of the assets the attorneys can deal with under the LPA.
f. The power of the donor to revoke the LPA when he has capacity to do so.
g. The pros and cons of executing the particular LPA and of not doing so.
There are two parts to this blog. I’ll first consider issues of access and transparency as they impacted on me as a member of the public seeking to observe a COP hearing, and then (in the second part) I’ll consider the substantive issues before the court.
1. Transparency
On this occasion I was also mindful of the Open Justice Court of Protection work on assessing the performance of the Court of Protection which you can see listed below and read more about here
Before I describe the hearing and what I understood and learned from attending, I will briefly reflect on the ten KPIs identified and can report:
- The hearing was listed on @CourtServe.
- It was not clear the public could observe.
- Partially met, the hearing was remote but the information did not clarify it was by telephone not video link.
- Correct contact information supplied on CourtServe and on the First Avenue House websites (and reproduced by the Open Justice Court of Protection Project).
- Fully met, I understood the hearing was about decisions relating to Lasting Power of Attorney (see listing below).
- Fully met, it was listed as a “Directions” hearing (see listing below).
- Fully met – I received a link to join the meeting via telephone.
- Not met. I did not receive a Transparency Order. I am basing this blog on my understanding of the ‘standard’ transparency order from previous experience at the Court of Protection hearings.
- Fully met, the opening statement by the judge provide clarity on the case, introduced the parties and identified who was representing whom.
- I requested but did not receive a Position Statement (i.e. a statement from the parties which setting out their argument and what they want the judge to do).
I’ll now describe what happened before and during the hearing and what I learned from being present. I’m including the “before” to show how straight forward it can be to attend and what to do – things I wasn’t aware of before my first experiences as an observer.
Before the hearing
I was made aware of the hearing the night before and was able to access the following information from Open Justice Court of Protection Twitter; knowing I had an interest I was lucky enough to receive a direct message alerting me to the hearing, and pasting in the entry from the Daily Cause List for First Avenue House.
Using wording from a previous template I applied via email; I am including the email which can be used and adapted for anyone wishing to attend a hearing. It’s important to put the words “Observer Request” and the case number and judge’s name in the subject header of the email. This is because staff are busy and it’s helpful to make it as clear as possible what you are asking for.
At 09:38 I received an email informing me of the dial-in details to attend the telephone hearing. I had previously joined by video conference before, so joining by telephone was new to me; I read that the landline was free to use – however there could be charges associated with using my mobile phone.
2. The Hearing
Opening
The hearing began at 10:34 with a welcome from Deputy District Judge Whitfield. There were two other people in attendance (aside from the judge and me): these were the applicant from East Riding Council (who I will anonymise as Mr Jones), and the respondent who I will anonymise as Mrs Lucy Smith.
Mrs Smith’s husband (anonymised as Thomas Smith) was noted by the judge to be a co-respondent but currently in hospital and therefore unable to attend. Judge Whitefield commented that information had been jointly received from Mr and Mrs Smith and confirmed it was acceptable to continue in his absence. Judge Whitfield explained that Lucy and Thomas were attorneys for Steven (the person at the centre of the case, Lucy’s brother) both for Health and Welfare and for Property and Finance.
The judge proceeded to explain the formalities of the hearing – namely that it was being recorded and that each of us could state we were in a private location and could not be overheard or disturbed. He asked if it would be acceptable to use first names in his discussions with Mrs Smith, to which she agreed; I will therefore continue in the blog with first names for Lucy and Thomas. The judge suggested it helped to reduce the formality which I understood, however I also felt it could have been appropriate to use first names for everyone rather than the respondents only for greater equality. Neither Mr Jones from East Riding Council nor I were referred to in first name terms, maybe a discussion on this potential power in balance is material for another blog?
Before formally embarking on the hearing, Deputy District Judge Whitfield asked how Thomas was and said that he hoped Thomas continued to make good progress in hospital. I had the impression this was valued by Lucy and it certainly helped create a compassionate atmosphere.
The questions to answer
The key questions in this hearing were: (a) were the LPAs valid? and (b) if not should a Financial Deputy be appointed and, if so, who?
Deputy District Judge Whitfield proceeded to lay out a summary of the issues at the heart of the hearing. (Providing this kind of summary meets KPI 8.) I found this helpful and appreciated having the background explained in such a clear manner. He explained that the hearing concerned the “validity of various LPAs and whether a deputyship should be appointed”. He outlined Steven’s history describing him as “approaching sixty, living in rented accommodation and as a person who has experienced lifelong physical and learning disabilities”.
The judge continued to explain that Steven has made two Lasting Power of Attorney documents (one for Health and Welfare, one for Property and Finance) which were signed in May 2022 but not yet registered due to objections raised by East Riding Council.
Following a capacity assessment made last year, Steven was identified as having a “basic idea of money”, but no ability to weigh up decisions or communicate with insight.
Both East Riding Council, represented by Mr Jones, and the two prospective attorneys had previously believed they should act for Steven and indeed that he wished them to. Deputy District Judge Whitfield noted that Steven is reported to have tendencies leading him to be “easily led” and to provide the answers that he believed to be wanted.
A previous dispute resolution meeting had been held and the judge stated he understood that Lucy and Thomas no longer objected to East Riding Council’s application.
In summary (said the judge):
- Were the Lasting Power of Attorney documents valid when they were signed?
- Would an investigation be required? (This would “fall away” if there were no longer objections)
- Does Steven have capacity to make a Lasting Power of Attorney?
Lucy and Thomas’s historical “lack of confidence” for the Council’s management of Steven’s financial affairs was identified, followed by a hope they were now satisfied “it is appropriate, and in Steven’s best interests, that East Riding take over financial affairs”.
The judge explained there was nothing to preclude “all parties discussing affairs” and suggested “establishing a baseline for discussing Steven’s needs, for example, Christmas presents and winter clothing”.
Having established that Steven does not have capacity to make an LPA, deputyship was described as a way of protect Steven and anybody else from misunderstandings. I have written in detail about the differences between an attorney and a deputy in an earlier blog and summarise briefly below:
- CAPACITY: An LPA is made when a person has capacity, a deputyship is made if a person has lost capacity
- CHOICE: Making an LPA gives a person choice in who can speak for them, a deputy is appointed by a court
- PROCESS: It is more complex to apply for a deputyship than an LPA
- TIME: It takes around twenty weeks to set up an LPA; a deputyship takes considerably longer
- COST: It is more expensive to set up a deputyship compared to an LPA
- ONGOING COST: There is an ongoing annual cost associated with a deputyship whereas an LPA has a one-off registration cost.
At this point, the judge asked Lucy if she and Thomas would be content that East Riding looked after Steven’s affairs to which Lucy agreed saying, “I only want what’s best for Steven”.
I noted that Deputy District Judge Whitfield stressed there was no “suggestion of impropriety”, and stated to Lucy “I suspect you have a lot on your hands”. This continued to demonstrate compassion that had been displayed earlier in the hearing.
The formal outcome
The judge summarised the proceedings stating “I formally record the LPAs are invalid and should not be registered, and the application for deputyship for property and affairs is approved”.
The LPAs were invalid was because Stephen lacked capacity at the time of signing the documents.
The unexpected outcome
In opening the hearing, Deputy District Judge Whitfield set out the relevant details. It appeared clear that the issue of Steven’s lack of capacity had already been agreed, this meant that Stephen would require a person (or persons) to manage his financial affairs. As Steven is unable to make an LPA, a deputyship is required for him; once again this was agreed by all parties at the outset. Following initial disagreement between East Riding Council and Lucy and Thomas, I understood in the opening statement that this had been resolved: both the respondents were now happy for East Riding Council to act for Steven.
At the outset the hearing appeared straightforward, and whilst the formal outcome was no surprise to me, what I had not expected was to see a Judge checking on a respondent’s welfare.
I have referred twice already to the compassion shown by Judge Whitfield and this continued to the end of the hearing.
Judge Whitfield gently and sensitively asked Lucy about how she was coping and what support she was receiving. On hearing that Lucy was coping without help he stated, “you might be entitled to some help and support yourself as his (Thomas’s) carer. Can you signpost Mr Jones?” To which Mr Jones stated, “I am happy to talk to Lucy after this call.”
What I learned from observing
This was the fifth time I have attended a hearing through the Open Justice Court of Protection project and built on the previous knowledge and confidence I have gained. I know that both information received beforehand and the application process can vary and fully appreciate the drive to set KPIs as minimum standards. As a new observer it can be easy to believe that you somehow “don’t know” how to navigate the system when instead the system is not clear enough to navigate. This is sad because any barriers to attending could dissuade people from attending and work against the judicial aspiration of transparency.
I left the hearing with greater confidence in how to navigate the system, but more importantly, with great respect for seeing compassion in action.
Clare Fuller RGN MSc is a registered nurse with a career dedicated to Palliative and End of Life Care. She is an advocate for proactive Advance Care Planning and provides EoLC Service Analysis and bespoke EoLC Education. Clare hosts Conversations About Advance Care Planning. She is also a Lasting Power of Attorney Consultant and director of Speak for Me LPA. Connect with Clare on Twitter @ClareFuller17
[i] Previous hearings I’ve blogged about are:
Bearing Witness: Anorexia Nervosa and NG Feeding;
Lasting Power of Attorney: Across Borders
Capacity to make a Lasting Power of Attorney
Reflecting on Re MW and Advance Planning: Legal frameworks and why they matter
Promoting Open Justice in the Court of Protection 