By Georgina Baidoun, 2nd October 2023
The hearing I observed (COP 13977140, listed for 12 noon on 18 September 2023 before HHJ Spinks sitting in Cambridge County Court) was a “final” hearing to last for two days, with the issue before the court being “Discharge/conduct of deputy or attorney, application by Public Guardian”.
Committing to a two-day hearing was a first for me. My previous observations have usually been no more than a couple of hours, often much shorter, being mainly “directions” hearings. I’m not sure I would want to do it again!
When I saw the details, as listed by the Open Justice Court of Protection Project on Twitter/X, I knew immediately it was probably the case I had been waiting for and I felt I had no option.
There are very few hearings involving the Public Guardian, they are seldom open to observers and, when they are, they are usually in person with no remote access for observers. At the last one I observed, the OPG representative expressed surprise and dismay at my presence because he had thought the hearing was private (I blogged about it here). On this occasion I overheard a conversation – I think between the OPG barrister and the OPG investigator – to the same effect.
With this background, I was agreeably surprised when I asked for a copy of the OPG’s position statement and, after a few days, received it from their very helpful barrister. By that time, I had already drafted this blog post, so it was interesting to see the discrepancies between it and my understanding of the case based only on what I heard in court. Because the respondents were not represented, there was no way that I could ask for their position statements – so I now have a slightly lop-sided perspective, which was not the case during the hearing. I have made a few revisions as a result but tried to keep more or less to what I actually heard. Interestingly, the position statement shows that this was originally intended to be yet another “attended hearing” (i.e. in person). I don’t know what caused the change, but it was possibly to accommodate the OPG investigator, who attended remotely.
My special interest in the OPG is in relation to property and financial affairs and stems from the very poor treatment to which I was subjected when I was acting as COP deputy for my mother’s affairs. In particular, after my first annual report, they insisted that I pay back a gift that I had made and, when I refused, threatened me with a range of consequences, including taking me to court to remove me as deputy. I was very keen to go to court because I doubt the legal grounds on which the OPG makes its decisions and welcomed the opportunity to obtain some transparency. It didn’t happen because my mother died and, anyway, it appears from a Freedom of Information request I made that such threats are seldom carried through.
This case concerned an attorney rather than a deputy and I imagine that there are more cases involving attorneys (compared with deputies) because – unlike the situation with deputies – the initial process of becoming an attorney involves very few checks. I sensed that the situation was similar to mine, however, in that the attorney believed that her actions were in keeping with her legal responsibilities and also that the OPG’s administration was badly flawed. Furthermore, she felt that she was being defamed by their accusations and that their behaviour towards her lacked understanding and humanity. She had clearly put her heart into preparing for the hearing, as demonstrated by the fact that she had produced over 300 pages of evidence and claimed to have spent £900 on photocopying. (The entire “bundle” of evidence before the court totalled over 1000 pages!) She represented herself, possibly influenced by the cost of employing a lawyer but I think also because she was so sure she was in the right and that the truth would prevail. Like most people in her position, she had no idea how the judge would expect the hearing to be conducted.
Joining the hearing
I received the link from the Cambridge court at 9.15 on the Monday morning (impressive!) with the heading ‘URGENT HEARING 18th September 2023 at 10:30AM’. I duly opened the link at 10.20 and waited… An hour later I rang the Reading hub to see what was happening but they still had the start time as 12 noon (as per the listing). Sometime after noon, the hearing did in fact commence. It was, I think, only my second experience of a hearing where most of the participants were present in the courtroom.
Present remotely were myself and the OPG investigator. (For information about OPG investigations, check out “How we do investigations at OPG”.)
Present in the physical courtroom were:
His Honour Judge Spinks
Mr Alex Cisneros representing the Public Guardian as applicant
First respondent, one of P’s two sons and a co-attorney (A)
Second respondent, P’s only daughter and a co-attorney (B)
Third respondent, P’s other son and a co-attorney (C)
None of the respondents was represented.
The camera was managed extremely well so that the witnesses were in view when giving evidence and the judge was in view at least some of the time when he was addressing the court. For some reason the OPG barrister was almost never in view – possibly due to logistics. I only found out his name when I emailed Celia with what turned out to be a poor attempt at a phonetic version!
The case
The way the hearing was listed was a little vague but it was, in fact, to consider the discharge of all three respondents from their roles as attorneys for both property and financial affairs and health and welfare for their mother, P. The three siblings held their attorney roles both jointly and severally and the OPG sought to replace them with a professional Court of Protection deputy for property and financial affairs, leaving the role of attorney for health and welfare unfilled. This was explained to me by Mr Cisneros at the start of the hearing at the Judge’s request. I had to work out the rest for myself!
It transpired as the hearing progressed that Son A had, in the beginning, been in accord with his sister as to the use of their parents’ assets (they were attorneys for both their father and their mother, but their father had died by the time this investigation began). He had agreed that in reality she would be the only one accessing their accounts because she was the only one looking after them on a day-to-day basis, including eventually moving in with them to give 24-hour a day care. He did have access to P’s bank statements, however, and eventually became concerned by some of the transactions. He had failed to get his sister to engage with his concerns and, as a result, had contacted the OPG.
To avoid paying a professional deputy, Son A had volunteered to be appointed sole attorney; this would be a separate decision once the existing arrangements were revoked, which is why at this stage he was a respondent and not an applicant. (Son C took no significant part in the proceedings except to express his support for his sister.)
I presume that what came next is standard procedure. The OPG started an investigation, putting the powers of attorney into abeyance and appointing an interim professional Court of Protection deputy for property and financial affairs. The investigation included asking for records of all expenditure, which B had provided in what appeared to be meticulous detail, going back some ten years. Since the OPG only ask attorneys to provide records of their activities in exceptional cases I would be very surprised if many attorneys have kept such detailed records, although it is clear that they are expected to do so.
The OPG investigator acknowledged that B had been very open during the investigation but said that some of her explanations had become “confused and changed slightly”. He had had no contact with the other two attorneys.
The evidence
The judge said that it would be impossible to go through all the evidence in the time allotted and that, although the OPG were not currently considering requesting that costs be awarded against the respondents, their position might change if resolution could not be achieved in two days. He suggested that the court concentrate on some of the major items of expenditure. He pointed out that the OPG were not requesting repayment of the money B was accused of spending inappropriately (a total of over £80,000 was later mentioned in this context) so she did not have to justify every item. (I don’t know why the OPG were not asking for repayment because they did in my case; I suppose that could come at a later stage, but the judge didn’t in any way suggest it as a possibility.)
B was not happy with this arrangement and, although the OPG’s barrister started off as instructed, a considerable amount of time was in fact spent talking about minor as well as major items. B was clearly very angry that the work and the care that she had put into looking after her parents had been, as she saw it, completely disregarded and that questions were being asked about such things as who paid the bill if they went into a café together. So, the discussion ranged from bills of less than £10 through to the cost of purchasing a car. There was also some time spent on a sum of £10,000 that the OPG initially said was unaccounted for, but then admitted was a transfer between accounts.
B was particularly exercised by the terminology “issues of concern” on the OPG spreadsheet and did not seem reassured when the OPG investigator said that this was simply his way of signifying things that needed to be looked at further.
The issue of capacity
This was an interesting area. Questions were raised as to when decisions were made; whether they were made by B or by her parents; were they before or after P lost capacity; and what capacity had been lost and what retained on each occasion? The power of attorney had been registered with the parents’ bank well before P lost capacity to manage her money, and B claimed that P’s capacity was, in any case, variable. Even after she had been medically assessed as being unable to make “financial decisions of complexity”, she was still capable of making choices as to how she wanted to spend her money. B said that her father had always managed the couple’s finances and they had never had bank or credit cards.
An underlying issue?
Some of the questions put to B concerned very large amounts of cash that she had taken from her parents’ bank accounts and kept at home. The OPG said she had talked about trying to avoid care costs (P was now in a care home) and she strongly refuted this, given that P was the sole owner of a house of considerable value. She said that her father had always kept large sums of cash and felt more secure being able to see it rather than having it in the bank. This made some sense given his declining faculties, including eyesight. However, it isn’t hard to imagine that B might have preferred to safeguard a certain amount of cash so that it would not be taken into account when, before the house was sold, the Local Authority made its initial financial assessment. The position statement shows that the Local Authority were now paying care home fees due to depletion of assets. B knew that she would have to repay the debt later but, in such circumstances, liquidity can be a real problem.
The judgment: A pragmatic decision
Looking at the government website, it seems to me that the duties of an attorney, as opposed to the duties of a deputy, are not closely defined and certainly there was no attempt at this hearing to come to a decision about whether or not B had contravened them on any particular occasion. In the end, just as the court was set to rise on the second day, the judge managed to pluck agreement out of nowhere, as far as I could see, although I might have lost some concentration! All three attorneys agreed that, whatever the rights or wrongs of B’s actions, because the relationship between them was irretrievably broken, they were incapable of continuing. Son A withdrew his request to act as sole deputy for the same reason. The judge ordered that a professional deputy should be appointed.
All three siblings agreed that they could still continue to act together as P’s attorneys for health and welfare and the OPG accepted that on the grounds that there were no immediate decisions to be made now that P was reliant on the Local Authority for care home provision.
B’s day in court
Despite unhappily agreeing to the decision, B continued to express her disappointment at the way things had turned out. She had wanted to clear her name and felt that that had not been achieved. She asked about making a complaint about the OPG and the judge said he was sure there must be a complaints procedure. I did so want to tell her not to bother; I have been through all that, including trying to take my case to the Ombudsman, and it doesn’t work.
Afterword
According to the blurb for a forthcoming book, Powers of Attorney for Property and Finance: A user’s guide by Ann Stanyer, more than six million powers of attorney are now registered in England and Wales and it does seem to me that it is an area potentially fraught with difficulty, with far too little general knowledge or detailed guidance. I am hoping the book will fill this important gap.
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
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