Opaque justice in the Court of Protection: A dispute about the validity of Lasting Power of Attorney

By Daniel Clark, 21st April 2023

At 2pm on Friday 14th April 2023, I observed a directions hearing (COP 13795316) via MS Teams before Deputy District Judge Chahal sitting at First Avenue House in London.

I simply couldn’t follow it.

Wittgenstein’s notion of language-games proposes that language only has meaning when applied in its context. In other words, it is action that establishes meaning. In the context of the Court of Protection, ‘open’ and ‘transparent’ only has meaning when it is connected with actions that make its work open and transparent. Simply admitting observers to a hearing is not enough: the hearing itself must be accessible to observers. One way that this can be done is by way of an introductory summary. The (former) Vice President has advised that an introductory summary is good practice, particularly because, ‘Whilst the judge and the lawyers will have read the papers and be able to move quickly to engage with the identified issues, those who are present as observers will often find it initially difficult fully to grasp what the case is about’.

That was certainly the case in this hearing.  In this blog I will first explain how the lack of an introductory summary resulted in a very confusing experience for me as a public observer;  then I’ll explain the background to this case (only possible because one of the parties kindly sent their position statement); and then describe the substantive content of this brief hearing. I’ll end with some brief reflections.

My experience of the hearing

I knew, from the listing, that this hearing concerned a dispute about Lasting Power of Attorney (LPA).

A Lasting Power of Attorney is a legal document wherein someone (a ‘donor’) appoints attorneys to make decisions on their behalf at a possible future time when they will lack mental capacity to make those decisions. There are two (separate) types. A health and welfare LPA concerns decisions such as those regarding medical care, including life-sustaining treatment, and residence. A property and financial affairs LPA concerns financial decisions, such as the paying of bills or selling a home. The donor must have the mental capacity to make the decision about the LPA when they sign the documents. 

LPAs are a very good way to ensure that, should you be unable to make a certain decision in the future, someone you know and trust will be able to make decisions in your best interests. It is worth pointing out that each LPA has a fee for registering. I mention this because despite knowing quite a lot about the intricacies of LPAs, the fee came as quite a surprise when a family member was registering their LPA. There are exemptions and reductions available, so you can still apply even if you may need financial assistance. 

I was sent the transparency order along with the link to the hearing well in advance, which is unusual and positive. This instilled in me a sense of optimism, and I felt that this signalled a clear commitment to open justice. 

At the beginning of the hearing, DDJ Chahal immediately acknowledged the presence of two public observers. However, this was only to tell us not to record the hearing,  before she dove straight into the substance of the matter. The judge was clearly familiar with the material, and did not ask Counsel for an introductory summary.

This had two negative effects. 

First, I had no idea what the actual substance of the disagreement between the parties was and it took me some time to work out who the barristers were representing, which made the hearing almost completely inaccessible.  

I knew from the transparency order that the applicant was the Public Guardian, and that there were four respondents. I deduced, from the fact that Courtney Step-Marsden was the first of the Counsel to address the judge, that she was the applicant representing the Public Guardian. I later deduced that Joss Knight, the other Counsel present, was representing the first and second respondents. 

However, that’s all I was able to know for definite. 

Due to the lack of introductory summary, I wasn’t able to follow the discussion between the judge and Counsel, and I wasn’t entirely clear what the nature of the disagreement was. I thought that this was a dispute about one LPA though, as I will discuss below, this was wrong. 

When public observers are admitted to a hearing, but no attempt is made to ensure they will be able to follow it, they are essentially being admitted as an act of lip service to the idea of transparency. This is not open and transparent justice; instead, it is closed and opaque justice. 

The second problematic effect of the lack of introductory summary is to do with the role of the protected party. It’s widely accepted that the protected party (P) should be at the centre of decision-making in the Court of Protection. However, it struck me at the end of the hearing that I did not know who P was – he was almost completely absent from the discussion. Counsel and the judge discussed ‘the LPA’ and ‘the Order’ but didn’t once circle back to P. 

Of course, this is probably because this is not the first time the parties have been in Court. Nevertheless, I feel very strongly that introductory summaries not only make hearings accessible to the public but also inevitably have an effect of re-establishing P as the person at the centre of the decision-making. But in this case, I didn’t notice a single mention of P: I didn’t even know he was a man until I was sent a position statement. 

This hearing was listed for one hour but only took half an hour. An introductory summary would have added a couple of minutes but would have ensured these proceedings were open and transparent for observers. In an email, Counsel for the Public Guardian wrote that they were instructed not to send the position statement of their client, and apologised that ‘the judge did not provide an opportunity for an introductory summary’.

It is regrettable that this was not done, and another observer has written about a similar experience with the same judge. However, I think it’s important that Counsel remember that they can offer to provide introductory summaries whether or not the judge signals that they should. Indeed, that happened in this case.

Background to the case

I am grateful to Counsel for the first and second  respondent (R1 and R2, two of P’s adult children) for sending me their (joint) position statement, which has allowed me to report on the details of this case.

P is a gentleman in his eighties who is living with late-stage dementia. He currently resides in a care home that provides specialist dementia care, and he is physically frail but receives commendable care. 

Strictly speaking, this case begins in 2016 when P appointed R1 and R2 as his attorneys for property and financial affairs. Three years later, he appointed them as attorneys for health and welfare. Then, a year later, ‘there was an attempted deed of revocation’ (quote from the position statement) of both LPAs (in effect, an attempt to make the LPAs null and void). 

But that same year, a doctor appointed by the Office of the Public Guardian (OPG) concluded that P ‘lacked capacity to execute the deeds of revocation’, and the OPG rejected them.

However, a month later, a revocation of the LPA for health & welfare was ‘produced’ (again, this is quoted from the position statement), and P signed a new (purported) LPA. This LPA appointed the 3rd and 4th respondents (R3 and R4, another of P’s adult children and P’s partner respectively) as attorneys for health & welfare. Finally, in mid-2021, the OPG applied to the Court of Protection in order to determine the validity of both the revocation and the new LPA. 

I do acknowledge that there’s some ambiguity in the above timeline. The position statement does not mention who attempted the deed of revocation, and what the attempt consisted of. Furthermore, the position statement does not explain who produced the final revocation. There is mention of a full chronology, which I assume clears up these ambiguities but I (of course) did not have access to that.  

The position statement explains that R3 does not challenge the original rejections of the deeds of revocation, and all parties accept the LPA for property & financial affairs first signed in 2016. 

The dispute, therefore, is whether P had capacity to revoke the original LPA for health and welfare, and appoint R3 and R4 as attorneys for health and welfare in a new LPA. It is the position of R1 and R2, as well as the Public Guardian, that P did not have capacity to do this.

Hearing of 14th April 2023 

In addition to the judge (DDJ Chahal) and the two lawyers, Courtney Step-Marsden of Outer Temple Chambers for the applicant, the Public Guardian and Joss Knight, of St John’s Chambers, for the first and second respondents), there were three other people present (on one screen, seated around a table) who I could not identify but who I think included at least one of the respondents. R3 and R4 were not present.

The Judge was clear from the outset that “this was only ever intended to be a directions hearing”. She did not have all of the information because not all of the relevant assessments were in the bundle, and therefore she was “not in a position to make an order”, not least because the parties disagree. 

Counsel for the Public Guardian explained that “there won’t be much further in terms of evidence”, and that the Public Guardian is broadly in step with the view of R1 and R2.

Counsel for R1 and R2 acknowledged that “there’s certainly contest between the parties”; namely, between the Public Guardian, R1, and R2 on the one hand, and R3 on the other. It was mentioned later in the hearing that nobody has been able to ascertain a position from R4, possibly due to ill-health. 

At this point in the hearing, it became clear that R3 had initially signalled her intention to attend but, when submitting her position statement the day before, said that she no longer would be attending. What was also clear was that R3 is diametrically opposed to the Public Guardian, R1, and R2: she wants the Court to appoint a deputy to make decisions. 

Counsel for R1 and R2 explained, “my position is thatthe third respondent wants to make various allegations and comments about the first and second respondents”, wants the Court to make final orders without being present, and “doesn’t appear to question the LPA.” R1 and R2’s position statement states that ‘none of this bears any relevance for the hearing and the proceedings….no concerns have been raised…about R1 and R2’s ability to carry out their duties under the LPAs’. Furthermore, the OPG has previously expressed the belief that it was not in P’s best interests for a deputy to be appointed. In sum, Counsel state that “this is a case where the Court should grasp the nettle and do what it will inevitably do.”

The Judge, however, disagreed. As the missing assessments were from R3, and apparently deal with the question of capacity, she would not make an Order. She decided that whilst there was no need for any further witness statements, she is going to give the opportunity for R4 “to file a witness statement within 14 days of the order”.

Finally, Counsel for R1 and R2 suggested that the Order from this hearing should encourage R3’s attendance at the next hearing. He was concerned that parties will prepare with the expectation that R3 will be present, and that they will be left in a similar situation of R3’s unexpected last-minute non-attendance. The Judge agreed to this, saying “if you indicate when position statements should be filed, and bring them forward a couple of weeks, that should notify us of the third respondent’s position”.

This case will return to Court, virtually, at a date to be set.  

There are three things worth remarking upon. 

First, this situation has been going on for quite some time now. I find it quite remarkable that concerns about the validity of somebody’s LPA have been allowed to continue over a couple of years, during the course of which many decisions must have been made about health and welfare matters without any clarity about who should be making them.  It seems to me there has been an unacceptable delay. 

Second, knowing about this case is clearly in the public interest. This case illuminates the tensions within the role of the LPA, and the relevance of mental capacity in the making (and revocation) of LPAs. The substantive content of this case could be quite educational for members of the public who are considering appointing LPAs, as well as those who are acting as LPAs.

Finally, the experience of observing this hearing has demonstrated to me that there is still more work to be done in making the work of the Court of Protection open and transparent. I am grateful to Counsel for R1 and R2 for providing me with their position statement but I find it disappointing that the Public Guardian instructed their Counsel not to do so (especially given that their position is much the same). And of course, an introductory summary would have made the hearing much more accessible: judges and Counsel should aim to ensure that an introductory summary, in line with the advice from the (former) Vice President is provided, for the benefit of observers and to re-centre the discussion around P. It doesn’t need to be long; it just needs to allow public observers to be able to understand what we are hearing. 

Daniel Clark is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research takes seriously Iris Marion Young’s claim that older people are an oppressed social group, and is funded by WRoCAH. He tweets @DanielClark132

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