“This is a quagmire and it needs to be urgently done”: LPA objections, disputed capacity and an imperative need for a panel deputy

By Eleanor Tallon, 12^th March 2023

Very little was revealed about the woman at the centre of this case – other than she has been living in a care home since the end of 2021, whilst her son remained living in her home. 

In June 2021, she had made a Power of Attorney for Property and Affairs appointing her son as her attorney. Then in March 2022 she instructed solicitors to revoke that LPA to appoint her daughter-in-law and grandson as joint LPAs instead. But then both she and her son objected to this change. This led to questions being raised about her capacity to make an LPA and to revoke the registered LPA. 

A Special Court Visitor was instructed to assess retrospective capacity for the LPA, and various other decisions, but her son disputes all the conclusions reached. Further complicating issues include concerns raised around her son’s conduct in managing her affairs, his occupational interest in her property and the fact that the woman does not want contact with the other family members.

No one is able to administrate her affairs and the Local Authority cannot proceed with financial assessments to secure payment for the care home placement, which leaves her in a tenuous position.

“This is a quagmire, and it needs to be urgently done. A panel deputy could resolve this, though there may be an issue about getting one on board quickly. The end result would be the court making full enquiries as to appointing a panel deputy, or her son, or indeed anybody else.” (Carol Davies, Counsel for the Applicant)

The woman isn’t party to the proceedings, but she is aware of them and wants to explain to the judge directly how she feels.

Access to the hearing

Having held a professional role within Court of Protection proceedings, I have a keen interest in the Open Justice Court of Protection Project to support my continuing development. I have observed several hearings before (and have blogged about three of them here, here, and here) so I felt somewhat prepared as to what to expect as a public observer. I knew it was best to email the court staff the evening before, and to choose 2 hearings in succession of each other (to provide a back-up plan in case my first choice was vacated). 

On the evening of 21^st February 2023, I scrolled through the listings (which are helpfully provided on the Twitter feed for the Open Justice Court of Protection Project [OJCOP]) and I noticed two hearings related to DOL, one at 9.30am and another at 3pm. I emailed to request access for both hearings, feeling suitably organised.

However, the next morning, I chased up the access link for the 9.30am hearing, only to receive an email from the court enquiries officer (shortly before the hearing was about to start), advising that I had sent the request to the wrong place (I sent the request to the ‘enquiries’ address rather than the ‘hearings’ email address) and they had only just passed it on. How frustrating!

This was a regrettable faux pas, as it was clearly too late to gain access and I didn’t hear back. I did hear back about my second choice, but unfortunately that one had been vacated. 

I felt dismayed (mainly with myself) and was reminded of my first hapless attempts at gaining access to a COP hearing as a public observer. I decided to admit defeat for that day and re-strategise for the following day, as I had a meeting that had been cancelled in the afternoon. 

That evening I looked at the listings and the following case (at 2pm) – tweeted by OJCOP – stood out to me:

I was interested because a Local Authority Solicitor (Laura Wrixon) had publicly commented on the tweet explaining:

“The 2pm hearing is not as listed. It’s about capacity re finances, registration of an LPA/appointment of a deputy and P’s participation in the proceedings.”

This was appealing, particularly when considering some of my recent work (as an Independent Social Worker), where I have been involved more often in assessing decisions around finances and litigation capacity. It’s been interesting to explore related case law, after spending many years (as a Social Worker and Best Interest Assessor) mainly focusing on capacity decisions around welfare, support, residence, and DOL. I felt enthused to observe the hearing, as a further learning tool for assessing capacity on financial affairs and understanding the legal processes related to deputyship. 

That night I emailed the County Court, as well as requesting another hearing as a reserve. On the morning of 23^rdFebruary, I chased up the request and by lunch time I received an email back with confirmation that the judge had approved my request, and a link to the hearing was provided.

Further to this, I noticed that the link had been passed on directly by a solicitor, named Laura Wrixon (presumably the same solicitor who had commented on the Tweet). It seemed that she was the instructing solicitor for Local Authority in the case, which gave me a perfect opportunity to request the transparency order and position statements, which I did. 

Shortly after I received the transparency order (and my request for position statements was being considered). It certainly felt like the obligations around open justice were being upheld, and maybe synchronicity was working in my favour?

I read through the transparency order, which highlighted the typical subject matters (which basically prevent attendees from sharing any personal details or sensitive information disclosed, which could identify those involved in the proceedings).

So, to protect confidentiality, I will use the pseudonyms; Mrs King, who is subject to the proceedings and her son will be referred to as Mr King (first respondent).

By reading the transparency order, I also gleaned that the original application was made in September 2022 by Hampshire County Council, with Mr King as first respondent and the Southern Health NHS Trust as second respondent. 

It was also apparent that an earlier hearing took place in November 2022 which considered issues of capacity around welfare and property and affairs. 

The hearing

Upon gaining access to the hearing (COP 13994886), Judge Emerson was already in the process of leading the introductions. I initially attempted to familiarise myself with who was who from the assortment of faces and names on screen, and I observed the following attendees:

• Mr King, first respondent, who was represented by a Legal Executive, Clare English (CE) of Martin Searle Solicitors
• Carol Davies (CD), Barrister of College Chambers and Counsel for the Applicant (Hampshire County Council).
• Laura Wrixon (LW), Instructing Solicitor at Hampshire County Council (the Applicant).
• Mr Christopher McGowan (CM), Solicitor at the Office of Public Guardian (OPG). 
• Ms Y, Social Worker at County Council.

The judge then advised the court that that I (Eleanor Tallon) had requested to observe the hearing, 

Judge: I have been made aware and I have no issues with it, does anyone else? I take it from the resounding silence that everyone agrees to Ms Tallon observing the hearing.

Counsel for the Applicant: Ms Tallon has received the transparency order. She has also requested position statements which we have considered, but it may be that Ms Tallon hears enough today to not need the position statements.

The judge then discussed the papers he had before him, which included a draft order, an order for a section 49 report, the statement of the Special Court Visitor, and position statements for the County Council, Mr King, and for the OPG.

At this point I was wondering whether the NHS Trust was no longer a respondent and if the OPG had now been joined as a respondent? And if so, was that the reason that a section 49 order had required a Special Court Visitor to conduct the capacity assessments? (Position statements would certainly have been helpful to make more sense of it all!)

Having checked the government website I was informed of the following:

Section 49(2) of the act provides that the Court of Protection (‘the court’) may request a report to be made to itself, either by the Public Guardian or by a Court of Protection visitor, to help with decision-making.

Court of Protection visitors can visit anyone they are directed to by the court. They can be directed by the Public Guardian to visit people who have a deputy appointed by the court to make decisions for them, as well as donors and attorneys acting under registered enduring or lasting powers of attorney. (A ‘donor’ makes a power of attorney; an ‘attorney’ makes decisions for the donor.) They may in some circumstances visit someone before the registration of a lasting or enduring power of attorney.

The judge asked whether there were any disputes regarding the reports.

Counsel for the Respondent: There is a disagreement on capacity, Mr King has some key points to make.

The judge advised that although the disputes would be considered, today’s case management hearing was not to determine factual issues about capacity. There was then some discussion around Ms English (Counsel for the Respondent) having access to Judge Emerson’s email address. It was agreed that Ms Wrixon would arrange this, followed by the judge requesting that an overview of the case was provided to the court for the benefit of the observer.

Ms Davies, Counsel for the Applicant,  then proceeded to outline the events which had led to the current position, which appeared to be quite complex, contentious, and protracted. 

From what I could gather, it seems that Mrs King spent some time in hospital from September 2021, following which she was moved to a care home, but there was a dispute as to her capacity to decide on where to reside. This wasn’t resolved until January 2023, at which point it was concluded that she had capacity to decide on residence, and her decision was to remain living in the care home.

However, there remained an issue around Power of Attorney. Mrs King had apparently appointed her son Mr King as her Lasting Power of Attorney (LPA) in June 2021. However in March 2022 she instructed solicitors to revoke the LPA in favour of her son, and instead appoint her daughter-in-law and her grandson (who both live in overseas) as joint LPAs. The LPA paperwork was sent to the OPG to be registered.

Following this, objections were raised by Mr King and Mrs King via a letter, which stated that she did not want her daughter-in-law or grandson to be registered as LPAs.

The OPG then considered the aspect of the LPA (for Property and Affairs) being revoked. Mrs King’s capacity to decide on appointing an LPA was in question, along with other decisions. Dr B was instructed to assess her capacity, followed by another expert, Dr H being asked to give further opinions. 

The parties then agreed to Dr N, Special Court Visitor, being appointed to provide a further capacity report, which was due to be completed by the end of March 2023 but had already been submitted some weeks early. 

The Special Court Visitor identified that Mrs King had capacity when requesting to revoke the LPA in favour of her son and had capacity to appoint her daughter-in-law and grandson. The Special Court Visitor also concluded that Mrs King currently lacks capacity to manage her property and affairs, lacks capacity to make decisions on the proceedings, lacks capacity to make a will, and lacks capacity to decide on the occupation of her home (as well as a couple of other issues which I was unable to capture, as I couldn’t write them down quickly enough!)

Counsel for the Applicant then highlighted that there is now an agreement that an update report is required as to Mrs King’s cognitive impairment and capacity. It wasn’t specified as to which decision this would be for and without having seen the position statements for this case (and with so many sub-issues) it certainly wasn’t clear what exactly was being contested, but I assumed a further report was agreed on account of ongoing disputes. 

I felt quite sorry for Mrs King, who I knew so little about, other than the fact that she had been subject to various mental capacity assessments on a number of convoluted matters, which could be an arduous and emotive process for anyone, with or without a cognitive impairment.

Further to this, Counsel for the Applicant related that Mr King had made an application via a COP 9 form for a judicial visit to his mother, and that this was the main purpose of today’s hearing.

Judge: I need to understand the need for the visit and what the practicalities would entail, instead of simply agreeing to it.

Counsel for the Respondent: The position statement from Mr King explains his reasoning for the request.

Judge: I also have to consider the timing of the visit. I have some hesitation. If I was to visit, I need to consider when it should take place. From what I’ve seen, it struck me that we don’t have an update on capacity on a number of issues. If I was to visit it should be done after the assessment has been done and people have had a chance to consider the outcome. One of the issues is capacity to litigate, and that’s one of the concerns I have.

Counsel for the Respondent referred to Mr King’s position statement and highlighted a point around Mrs King’s ability to participate and have her voice heard in the proceedings.

Counsel for the Respondent: Mrs King is aware of the proceedings and wants to explain to you directly how she feels.

Judge: I understand that, but do you understand my point?

Counsel for the Respondent: Yes, though if she does lack capacity her wishes and feelings are still pertinent and her comments will inform the court.

(My BIA senses were tingling listening to this exchange).

Judge: Absolutely. The point I’m making is this. You are effectively asking a Special Court Visitor to review all capacity issues. I understand the point about participation but not knowing what the answers to the capacity questions are… If I don’t know what any difficulties are and how to approach her, I fear that I will be beating around in the dark not knowing the answer.

Counsel for the Respondent conceded that if Mrs King was found to have capacity overall then a visit might not be necessary.

Judge: I understand that practice directions mean there is a desire to enable participation and there is an indicated desirability for judicial visits, which I have sympathy with. But I don’t think at the moment, I should make a decision until I know what the mental capacity assessment says.

Counsel for the Respondent: If she has capacity to litigate then that makes a difference.

Judge: The purpose is not to gather information.  If she has capacity, the court has no jurisdiction in any event.

A recent blog from the Open Justice Court of Protection Project springs to mind here, which relates to situations in which a person may have capacity to litigate but not to make the decisions in question, though in practice this appears to be fairly unusual.

Judge: We will wait for the assessment, and we can make a decision at that point. It’s not helpful to make a decision today.

Counsel for the Applicant: That matter can be adjourned until the next hearing. I don’t know if a Special Court Visitor could complete the report within that period. We may need to think about vacating the hearing for the 25^th April.

Judge: I suggest we keep that hearing for now. In terms of the directions for the report, how quickly can it be provided?

There was discussion about hearing dates and timescales for the report. The judge then went through recitals for a further draft order, and the issues that need to be covered going forward which included: the need for an updated mental capacity assessment;  a note of what experts did agree on; Mrs King’s views on contact with her daughter-in-law and grandson; and the reasons to believe that Mrs King may have lacked capacity on appointing a Power of Attorney (Property and Affairs). (I assumed that this latter issue was in reference to the subsequent application made for her daughter-in-law and grandson but it wasn’t entirely clear).

Mr McGowan, Solicitor for the OPG, discussed whether there was a pragmatic solution as an interim position which could be agreed between parties.

Counsel for the Applicant: Mr King does not agree for a panel deputy.

A panel deputy is a professional deputy appointed by the Office of Public Guardian. The Court of Protection will choose such deputies from a list when no one else is able to act for a person who lacks capacity on the relevant scope of decisions.

Counsel for the Respondent: Mr King refutes the statement that he’s unsuitable to act as deputy and is concerned that the costs for a panel deputy would impact on her estate.

Judge: I’m not going to make a determination as to a final appointment of a panel deputy, but we need to consider what should happen in the interim. What do you say Ms Davies?

Counsel for the Applicant: It’s a hornet’s nest, as to registering the previous LPA. The report from the OPG last year, raised concerns as to Mr King being responsible. We are not recommending a deputy, other than that an interim deputy would be appropriate. The County Council Charging Assessment Team are extremely busy and it wouldn’t be feasible for them to act, as they would not want to hold the deputyship whilst there is a dispute. The only option is for a panel deputy to ensure neutrality. There are ongoing difficulties to date as there is no control over Mrs King’s finances, which means the council can’t get going with the financial assessment to work out what she should contribute to the costs of her care. This is a quagmire, and it needs to be urgently done. A panel deputy could resolve this, though there may be an issue about getting one on board quickly. The end result would be the court making full enquiries as to appointing a panel deputy, or Mr King, or indeed anybody else.

Solicitor for the OPG: I just want to point out a further nuance when deciding whether Mrs King’s property should be considered into the financial assessment. If Mr King remains in the property that would raise issues.

I would just explain here for the reader that when a Local Authority arranges a permanent care placement, they complete a financial assessment in terms of the personal contribution the resident is able to make towards the costs. The LA takes the person’s property into account, possibly initiating a deferred payment agreement (DPA) until the property is sold. 

However, there are certain conditions in which a property owned solely by the individual can be disregarded, and this includes when a family member is still living in the property as their main or only home (and therefore has ownership rights). This is known as ‘the relative’s property disregard’ and guidance on how LA are to apply the disregard is provided by DoH in the light of the Walford v Worcestershire County Council judicial review [2015] EWCA Cov 22.

Mr King’s age wasn’t confirmed and the disregard can be applied regardless of age, but the property must be disregarded where the relative meets the qualifying conditions (i.e. is aged 60 or over or is incapacitated) and has occupied the property since before the resident entered the care home.

Judge: What you are suggesting is a potential conflict of interest between Mr King and Mrs King in respect of ownership of property, in that the management of her affairs could be compromised. Yet the property and affairs of Mrs King do need to be administrated. The council have concerns as to Mr King being suitable to exercise the deputyship and the OPG has also raised concerns to this effect. I’m only dealing here with the interim and to decide the best interests of Mrs King before we get to a final hearing. There is a need for her Property and Affairs to be dealt with urgently and an assessment of her care fees. There were concerns regarding the previous conduct of Mr King and Dr H reported issues. Within the position statements there is evidence of a conflict of interests. Mr King has an occupational interest in the property. I must consider the proportionality of a deputy being appointed, as well as the potential delays in a professional being appointed when there is a family member willing, but the concerns are reiterated. On balance, for an interim position, it seems an interim deputy is appropriate notwithstanding the costs and delays that may cause. I have not made this decision based on findings of fact against Mr King. It’s a holding position until that determination can be made.

However, the quagmire didn’t end there.

Respondent for the Applicant: I’m just flagging the point on the current LPA, we don’t have a registration of the LPA made in favour of the grandson and daughter-in-law and it is unclear whether a deed of revocation has been registered for the LPA made in June 2021. Maybe Mr McGowan can assist.

The judge queried whether any current LPAs were suspended.

Mr McGowan (Solicitor for the OPG) discussed the process of removing an LPA in order to appoint a deputy and highlighted that there stands an objection (I assumed he meant from Mr King?). Mr McGowan went on to say that the OPG could not be sure that Mrs King had capacity to revoke the LPA for her son and said that the LPA is still live but needs to be suspended. 

(I hadn’t heard of an LPA being suspended but it does seem to be ‘a thing’. Please see this commentary for further clarity).

Judge: I just about understood that.  Thank you for explaining. I will now move on to the next recital that needs to be determined.

The judge then made reference to the recitals asking the parties if they were happy with (a) to (g) (which I was not privy to, so I found this difficult to follow). However, it appeared that Mr King was not in agreement with some of the points.

Counsel for the Respondent: Mr King disputes that he moved into the home after his mother was hospitalised and he has evidence that he occupied the property for 7 years. He has concerns regarding (f) to (g).

Solicitor for the OPG: We need to determine Mrs King’s capacity to object to the LPA in March 2022. We need an opinion on her capacity to make that objection.

Counsel for the Applicant: In relation to the purported attorneys, Mrs King’s grandson and daughter- in-law, we are all clear that she doesn’t want contact with them. The question is around the position of these two people, should they challenge the revocation. They have not been notified of these proceedings or asked whether they want to be actively involved to push for their LPA. I am proposing whether to make a provision for them to be notified and if they seek to join, to file a COP 5. 

A discussion ensued around gaining permission to serve notice by email (given these relatives live overseas) and the limits of information that would be shared with them when notifying them of the proceedings. Dates were discussed for a further hearing in June and it was agreed that Mrs King would be offered an opportunity to attend the next hearing in April if she so wishes.

The judge then went through the requirements for a further section 49 order and systematically went through the recitals for directions, commenting that it can be ‘painstaking and difficult’ to go through the order but it’s helpful to clarify the directions and decisions needed. 

Finally, the judge asked whether there was anything further from the representatives, which they declined, and he thanked those involved and brought the hearing to a close.

Reflections

Counsel described this situation as a hornet’s nest and indicated that the legal ground they were covering was a quagmire. These metaphors seem entirely fitting. Though, what didn’t come across enough for me, was any real impression of Mrs King, or her views. 

I was concerned that Mrs King had indicated that she wanted to play a part, yet had she been offered the opportunity to attend the hearing? The social worker was present within this hearing: could Mrs King have attended alongside her social worker to support her participation?

I accept the point that the judge made in relation to not wishing to visit with Mrs King until a further mental capacity assessment had been completed, though I envisage from her point of view, that she might be tired of repeated assessments covering the same boggy issues, only to find that parties have remained in conflict as to the conclusions made, thus leaving her in a place of uncertainty and confusion. Could it be that she simply wants to be involved and retain a feeling of dignity and control within these proceedings?

In my professional experience, I have often seen families feud when it comes to decisions around finances and property, and not infrequently, this can be the subject of safeguarding concerns. Under the Care Act (2014), the person must remain at the heart of safeguarding enquiries and their wellbeing and what they want as an outcome should be ascertained and upheld as much as possible throughout the process. 

The principles of the Care Act (2014) and the Mental Capacity Act (2005) are clear and congruent to one another, and both advocate for participation. To that end, I hope that Mrs King gets the opportunity to have her say, in a way that is meaningful to her. I also hope that these complicated matters are resolved soon, to enable her to feel settled, rather than being stuck in the middle of crossfire.

Of course, I am mindful that the purpose of the proceedings is certainly not to disempower Mrs King. On the contrary, the objective of the Court of Protection is to uphold the rights of vulnerable individuals who are assessed as lacking capacity to make decisions, promoting their autonomy and happiness, whilst balancing this with an acceptable level of risk. 

At times, the complexities of a situation are such that the court will need to take meticulous steps to work towards achieving the best and most appropriate outcome for the individual concerned. This often means wading through a treacherous waste ground before that solution is reached.

In terms of determining that elusive balance between empowerment and protection,  I pose a few reflective questions:

• How will the mental capacity assessment be re-approached to ensure the conclusions withstand further challenge?
• Has the relevant information been broken down in a way which is accessible to Mrs King, to support her in making the requisite decisions?
• Has Mrs King been made aware of the concerns raised around her son managing her finances, and what are her views on him continuing to live in the property? 
• If Mrs King has capacity around contact with her family who live abroad (and is declining to share information with them), would it even be viable for them to seek to be her POA?
• Does she have an advocate to support her (or an IMCA if there are statutory investigations around financial abuse)? 
• Are there any suggestions as to further ways in which she could regain capacity on specific areas?

I was left with many unanswered queries, which may have been addressed by the professionals involved already. This might have been clearer had I been provided with position statements, which I have pursued and not received, though I recognise the workload pressures (which create ever-increasing to do lists!).

Further thoughts

Overall, what struck me about this case, was the importance of providing a clear record of a person’s decisions and reasoning, at the time when their capacity isn’t questioned. In contrast to appointing a deputy through the court (after the person has lost capacity to make decisions on managing their financial affairs), appointing a Power of Attorney (whilst the person has capacity to do so) is a relatively simple process. The court is rarely involved, the documentation can be completed online by the person (or their representative) fairly quickly and with minimal expense (here https://www.gov.uk/power-of-attorney/make-lasting-power).

But if the evidence that supports the LPA application is less than comprehensive, then this lends itself to controversy if the person’s capacity to appoint an LPA is later challenged.

When supporting a person to apply for an LPA, it would be prudent to record the discussions held with the person, which clearly evidence their ability to understand, retain, weigh and communicate the following (as set down by Mr Justice Poole in the following judgment, paragraph 16):

The Public Guardian v RI & Ors [2022] EWCOP 22

I proceed on the basis that the relevant information in relation to the execution of an LPA 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.

And when considering capacity to execute an LPA, it is emphasised that the bar for capacity should not be set too high and that explanations should be given in a way that is appropriate, for example by use of simple language. There should be a clear breakdown as to the relevant information which is shared with the person, using communication aids and other support as necessary. 

An independent report from a suitably trained professional may help to ensure that a POA application is rigorous, with accurate recording that stands up to future scrutiny. This might help to avoid a legal quagmire such as the one Mrs King has found herself in, and to ensure that the most empowering decision is made.

Yet, there is the potential for unforeseen circumstances, such as concerns arising from the conduct of a registered LPA, which may mean that an investigation needs to be carried out by the OPG (possibly alongside the Local Authority) and further steps may be required, to safeguard the person’s financial security and well-being. 

As noted within this case, appointing a professional deputy in such circumstances is not a decision that is made lightly. It follows a conscientious decision-making process with careful regard to the merits and disadvantages, when weighing up the options. But ultimately, this may be the only feasible option where a higher level of scrutiny, neutrality and professional accountability are warranted. 

From my observation of this hearing, I feel reassured that Mrs King’s case will be dealt with diligently, when a final determination is made on the appointment of a deputyship.

Eleanor Tallon is an Independent Social Worker and Best Interests Assessor. She can be contacted via her website mcaprofessional.co.uk and found on LinkedIn. She also Tweets @Eleanor_Tallon