Validity of Lasting Power of Attorney: Observing my first Court of Protection hearing

By Libby Crombie, 10th February 2023

On Tuesday 7 February 2023, finding some unexpected free time on my hands, I made a last-minute decision to observe my first hearing in the Court of Protection (COP 13890632, before DJ Gilmore at Coventry Family Court, via MS Teams).

I am currently studying the Barrister Training Course and following attendance at an education weekend in January this year, I was directed to the Open Justice Court of Protection Project. I am interested in practising in family law. Therefore, being aware both practice areas complement each other, I wished to expose myself to the Court of Protection. This morning, I decided to go onto twitter and see if there was anything I could observe today. Luckily for me, there was! 

I was a little apprehensive to join as I didn’t know too much about the Project beforehand. What I was most nervous about was the process of joining the hearing itself. I was unsure whether I was emailing the right place and whether I was even allowed to join. However, a lesson I’ve taken away is that as long as you follow the wonderful instructions that the Project posts, you are doing the right thing and you will be welcomed into the hearing with open arms. 

Prior to the hearing I was forwarded the Transparency Order and the Position Statement from the Office of the Public Guardian (the applicant in this case). Although I wasn’t sure if there had been a mix up, it turns out these documents were meant to be sent to me. I felt quite special! 

Top tip for those observing a hearing for the first time – be prepared to occasionally respond to questions from court staff and the judge. It’s nothing scary. They are just administrative style questions to ensure you can see and hear everyone clearly and have access to the required documents. I wrongly assumed beforehand that I would sit in the corner with my camera and microphone off for the whole hearing. Being involved in some way however did make me feel like I was really a part of the hearing, and that my attendance was valued in some way.

There wasn’t an opening summary of the case, but the listing stated that the issue before the court was: “Directions required for OPG’s applications to revoke LPAs for P&A and H&W and appoint a Panel Deputy to manage the property and affairs of [P]”. (To unpack this: OPG = Office of Public Guardian; LPA = Lasting Power of Attorney; P&A = Property and Affairs; H&W = Health and Welfare.) 

The hearing began in the absence of the respondents (three family members of the person at the centre of the case, who purportedly held the roles of Attorney or replacement attorney) –  because, it turned out, they had not been served with the directions order. 

The court was immediately faced with a dilemma – should the hearing be adjourned or should the hearing continue? DJ Gilmore concluded that she was satisfied she could make directions in this case without prejudicing the respondents, as the order sought was essentially an order for evidence to be served. Considering that an adjournment would create unnecessary delay to proceedings, DJ Gilmore continued the hearing. 

The hearing progressed by DJ Gilmore going through the draft order filed by the OPG with him (and with the interim deputy who was also in attendance), making amendments where necessary.

The key issues in this case are two-fold:

  1. Whether the Lasting Powers of Attorney are valid?
  2. If not, who should be the deputy for finance and property?

The question as to whether the LPAs are valid arises from a concern as to whether the donor (P) had capacity to execute them within ss.2 and 3 of the Mental Capacity Act 2005. 

The protected party (P) is a man in his 30s who lives in a supported living residence. In November 2020 he made LPAs appointing his parents to manage his financial affairs and his health and welfare (with his brother and uncle as replacement attorneys). The local authority raised concerns about his capacity to make these LPAs. (For information about what a person needs to be able to understand, retain and weigh in order to make an LPA: see §16, The Public Guardian v RI & Ors [2022] EWCOP 22.

The case had already been heard previously before another judge who had suspended the LPAs and appointed an interim deputy. A Special Visitor had also been appointed (a medical practitioner with expertise in assessing the retrospective capacity of people with neurodevelopmental challenges). In this case the Special Visitor had concluded.:

  • P has a diagnosis of ‘mild’ to ‘moderate’ intellectual (learning) disability;
  • P lacks the capacity to manage his [property and financial affairs], deal with the concerns raised, revoke his LPA or make a new LPA; and
  • P did not have the capacity on 15 November 2022 to execute the LPA in question.

The validity of the LPA is the primary issue to firstly be determined at a final hearing, which was set for a few months’ time. 

The judge directed that the family should be asked: “Do they contend that P had capacity within the meaning of ss. 1 and 2 of the Mental Capacity Act to execute the LPA on 15 November 2020. If so, they should set out their evidence, supported where possible by contemporaneous documentary evidence”.  If the judge decides (in accordance with the professional advice above) that P did not have capacity to make an LPA, and that he lacks capacity now to manage his own affairs, then it will be necessary to appoint a deputy. That could be either a family member or a professional deputy (e.g. the interim deputy appointed by the court).   DJ Gilmore also directed that P’s participation in these proceedings should be facilitated “to the extent that he wishes to participate”.

Mr Thomas Francis of 4-5 Gray’s Inn Square Chambers, counsel for the OPG, raised concerns about financial mismanagement by family members, and asked for this to also be considered at the final hearing, when considering who should be appointed as deputy. 

DJ Gilmore commented that the draft order, which required the respondents to respond to allegations of financial mismanagement did not make it very clear exactly what those allegations were, and asked the OPG to set them out more clearly. It seems there was a large outstanding debt, and family members were, the deputy said, not responding to requests for clarification or explanation about P’s various bank accounts. There was also (said counsel for the OPG) a concern about a reduction in the number of days per week that P was attending day activities, with a suggestions that this is to reduce financial expenditure – although it was agreed that P has capacity to make his own decisions about activities, and he’s said he doesn’t wish to attend 3 days a week. The judge reworked the order to read: “The allegation is that it’s alleged that for reasons of finance, you decided that P should attend the day activities for two days a week instead of three days a week. Please address whether this is correct. If not, why not? If it is correct, please explain your reasons”. 

The final hearing should be in person on Thursday 13th April 2023, starting at 10:30am. There was a discussion about whether it should be in person or remote, and the challenges of online hearings were mentioned with the judge concluding that it would be “prudent to list it in person – to avoid connectivity problems”. I personally was happy to see the court decide to have the hearing in person – as a bar course student, in-person advocacy is what it’s all about! However, the convenience of holding online hearings is also something that shouldn’t be lost.

Having the opportunity to attend this hearing was invaluable. This has given me confidence to join more in the future, observing other areas of Court of Protection work. I was unaware until recently that Court of Protection hearings could be observed by the public. This is an area of the law that we are unlikely to observe during a mini-pupillage, so the work done by the Open Justice Court of Protection Project is extremely beneficial for those with an interest in this practice area. It’s impossible to know whether you truly like something until you see it in practice. Today’s hearing really helped to confirm my interest in the Court of Protection. 

Libby Crombie is a Durham University LLB graduate and current Bar Practice Course Student at the University of Law (Liverpool),  Gray’s Inn Uthwatt Bar Course Scholar. 

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