Very like London buses – several ‘property and affairs’ hearings all at once

By Georgina Baidoun, 16 July 2023

I have become lazy about looking for hearings in my area of interest, which is property and affairs and particularly Court of Protection deputy issues, because there are so few listed and those few tend increasingly to be held in person or to be vacated/cancelled. The advent of good weather and the demands of the garden also played a part! This week it rained and I decided to try – with a little extra prodding/help from Celia – to re-engage.

On Monday I asked to observe a hearing in Walsall that was taking place at 3.00pm. I got a message back at 11.00am saying it had been vacated.

On Wednesday, Celia had found two hearings for me, one at First Avenue House at 10.00am and another in Sheffield at 12 noon. I got an email from First Avenue House at 8.55am (very impressive) to tell me that that hearing had been put back to 12 noon. Given the chances of the Sheffield hearing being vacated, I was tempted to hold both options open but decided that would be too nerve wracking. The First Avenue case did at least sound as though it would happen but good manners told me I should go with Sheffield. Virtue had its reward and the Sheffield connection worked like a dream; I got a link at 10.37. There was a bit of a false start, but more of that later.

On Friday, I asked to observe two consecutive cases in Bradford, one at 11.00am and one at 12 noon. The point of contact for both Bradford and Sheffield is Leeds (because both are part of the North East-East Regional Hub – for more information about Regional Hubs check out this page) and the Leeds contact had worked so well on Wednesday that, when I had heard nothing by 10.15, I imagined the delay was with Bradford and therefore emailed them directly. When that produced nothing, I rang Leeds. As I thought, they had forwarded my request but were also able to tell me that the 11.00am was likely to be vacated. They said if I rang them closer to the start of the 12 noon hearing they would try to help but didn’t discourage me from ringing Bradford. So, towards 12 noon, I rang Bradford. I made such good choices out of the telephone options that I was immediately talking to someone who was able to tell me that they were waiting for the judge’s approval and he was in a hearing – the one I was told was likely vacated? More of that one later too.

So, two out of five, of which a little more below.

1. Validity of a Lasting Power of Attorney: COP 13977278 before DJ Roebuck

Having been given the link so early, it was up to me when to join. I believe it is courteous to join early so I was in the court well before noon. Almost immediately there was someone else on the screen who was clearly not part of the court staff and was extremely surprised to see me. He said he thought he must be in the wrong place and that he would log off and come back later. I did my best to reassure him that I was an observer and that he should stay where he was. Luckily others (family members it turned out) then appeared and they started talking among themselves. After a few minutes the clerk and judge joined us. I have not had that experience before.

It turned out that my presence was also a surprise, and not a welcome one it seemed, to the barrister, Mr Alex Lawsonof 33 Bedford Row, who was representing the Public Guardian. When the Judge introduced me, she asked if there were any objections. He immediately replied that he had not been expecting an observer. The judge replied that she had only heard about my existence a little while earlier while she was in another hearing. Mr Lawson did not look very happy but did not pursue an objection. I’m afraid this tended to confirm a suspicion I have that the Office of the Public Guardian does not like observers.   

I never did find out who any of the parties were. I was not served with a Transparency Order, which would have given me this information and it didn’t become clear to me in the hearing, which was very brief. (I have since asked the court and Mr Lawson to provide me with a TO but have had no response.)

The hearing turned out to be an emergency hearing for the judge to make an order about medical records. For this reason, I wasn’t surprised that no summary of what had gone before was provided, although Celia says I should have been and referred me to the (former) Vice President’s memo saying so (here). Not having an introductory summary meant that I had to engage  as so often, in a bit of a guessing game. It seemed that there was a dispute between members of the family about the validity of an LPA and that P’s wife and some children were on one side of that dispute and one child on the other. None of them had legal representation. The validity of the LPA hinged on whether P had had capacity to make the LPA at the point when he made it. The OPG had seen medical records from his GP (which might or might not have included records from a dementia clinic also involved in P’s care) and had presumably been happy to accept at that stage that P did have capacity, since they had then, as required by Data Protection law, destroyed them. Now one of the children was questioning this acceptance and was requesting access to the records. This required the judge to make a ‘third party order’ for the GP to again release the records prior to the full two-day hearing, which had been scheduled for next week.

Clearly the records were not going to be obtained immediately and the judge and Mr Lawson were both of the opinion that a delay of 6 weeks would now be necessary. This delay was opposed by at least one family member because P, who was now terminally ill, would probably not be alive by the time the case was resolved. The judge asked Mr Lawson for confirmation that P’s death would result in the case being closed; he agreed, I thought a little uncertainly, that it would be. It left me wondering what would happen next, if there had been, for instance, a misapplication of assets. I guess an expensive civil suit would be the only possibility, which makes you realize how relatively cheap the Court of Protection can be.

An interesting issue was to whom the GP should send the records, especially as it seemed they would probably need to be redacted. Mr Lawson agreed that the OPG would be the appropriate recipient as they had had the records before. Another issue was that the judge mentioned that she was applying to the Courts and Tribunals Service for an interpreter for one family member whose views had previously been interpreted by another family member. I wonder why this was thought to be necessary as the whole family spoke the same language and any disagreement about translation was hardly likely to be avoided even if the interpreter was an impartial outsider. 

2. Appointing a Court of Protection Professional Deputy: COP 14036507 before DJ Foster

This was another typical case of wondering whether or not to give up. As I have learned from my experience and that of others, it’s almost never too late to find yourself thrown into a hearing having waited well beyond the start time. If you hang on, you need to be prepared to be surprised. I was sitting at my desk with my laptop in front of me doing some work and occasionally glancing at my phone to see if a link had at last been sent when, 40 minutes after the noon starting time, I heard my landline ring. It was the first invitation I had ever had to join a telephone conference and I was so tempted to simply put the phone down. Instead, I pressed the buttons as instructed and was almost immediately being addressed by the judge. It seemed that the hearing had already started and the judge was interrupting it to welcome me and also to ask if I had received a Transparency Order, which he believed should have been the case. I answered that I had not had a TO but that I understood the generality of its contents. He asked me what my understanding was and was clearly relieved by my response, allowing him to proceed without my further involvement. 

The recorded message at the beginning of the session instructed me which buttons to press to mute myself but I was too worried I’d press the wrong ones to use them; I just kept very quiet! I think one of the other participants did make that mistake because the judge noted that he had left the conference and another participant then reported that he was trying desperately to return, which is apparently impossible. The judge had explained that the telephone was being used because of ‘significant technical problems’, which also meant he didn’t have access to on-line files. Fortunately, he had access to the ‘consent order’ which he said was sufficient.

The hearing itself was very straightforward, although I think there had been bumps along the way to get to the agreement that was reached. This was that several members of a family would support the appointment of a Court of Protection professional deputy for the property and financial affairs of P, another family member. It seemed that they had come to the conclusion that this was in the only way to avoid conflict with other family member(s), although it would not otherwise have been their choice, not least because of the costs involved in employing a professional. 

The judge’s role seemed only to be to check that they all understood the consequences of their decision. He also checked with the proposed appointee that his firm had sufficient indemnity to cover any losses and talked about the insurance bond that would need to be purchased after P’s assets were known. Finally, he reassured them that the professional deputy would have to report on all expenditure to the Office of the Public Guardian.

Reflections

Both of these cases involved several close family members and it stands to reason that the bigger the family the more likely they are to disagree. In the second case, the problems could only be resolved by appointing a professional to take over. In the first case it seems likely that the problems would not be resolved at all during the father’s lifetime. My way of trying to resolve these problems would be to name a professional (solicitor or possibly accountant) in the LPA, along with one or more family members. It would be interesting to hear what others think.

Looked at as a whole, I can only say that the experience of engaging with the Court of Protection is anything but predictable. It is also clear that the people working in the system often do a remarkable job in the face of considerable adversity. And timing is a real problem. Ideally you want to decide what to observe once the lists are completed at the end of a working day. That means your request reaches the court offices at the start of the day when staff are at their most busy. But when it works well it is impressive.

Georgina Baidoun was the lay Court of Protection Deputy for her mother’s Property and Financial Affairs until her mother died in 2021. 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.  Georgina is the author of many previous blog posts including: A property and affairs application: Observations about P’s role and who should pay costs; Office of the Public Guardian steps in when attorneys don’t agree; and Unusually, this applicant had to pay costs in a Property and Financial Affairs case – the penalty for wasted work. She tweets as @GeorgeMKeynes.