The Public Guardian, Gifts and Attorneys

By Georgina Baidoun, 10 June 2024

My interest in observing COP cases is limited to cases involving attorneys and deputies, and these are usually about property and financial affairs. There are few of them to observe and they are increasingly listed as being ‘in person’, which makes it hard for me to attend.  I was therefore grateful to Celia when she alerted me to a hearing before DJ Ellington at 12.00pm on Thursday 6^th June 2024 which was listed (as shown below) as a hearing concerning “decisions relating to property and affairs” with “The Public Guardian” as first respondent.

I emailed to request the link on 5 June at 16.23. I sent a reminder the next day, the day of the hearing, at 11.30. Getting no response, I then rang at 11.53 to be told that the hearing was ‘attended’ – the implication being that it was in person and no links would be provided. I pointed out that that was contrary to the CourtServe listing and the person to whom I spoke easily traced my email and agreed, since I had included a screenshot of the CourtServe entry in my email. She then assured me that she had at that moment sent my request to the court clerk. Exactly an hour later, when I had given up expecting anything, I received this email.

Please note the hearing was delayed and has just started.
Please ensure you join 5–10 minutes before the hearing start time.
Please read the attached Transparency order.

I hurriedly clicked the link and entered the court room, to be asked immediately by the judge whether I had received the Transparency Order. I had acted so quickly that I hadn’t read the bit about the TO being attached so had to go back to it and then assure the judge that I was happy to comply.

I think it was the most crowded hearing I have witnessed. There were ten people there, including myself and the judge, and only the judge was in the physical courtroom. So much for it being ‘attended’ or in-person.

The judge said that they had already gone through the preliminaries so I got no summary of what the hearing was about and found it very difficult to make sense of a lot of it. I couldn’t even make sense of all the people on screen. The only contributor of substance was the barrister representing P, Alexander Drapkin of 5 Stone Buildings. I am used to P being represented by the Official Solicitor but got no sense that this was the case here. I am guessing that he was employed by the ‘interim deputy’ who was referred to and was perhaps another of those in court I am still confused as to who the applicant was. The listing shows it to be P (MGW) and it tended to play out like that, but the Transparency Order says it was the Public Guardian.

This is the second case that I have observed recently where attorneys had already been replaced by an interim deputy and I imagine that this is to protect P’s interests while a case is progressing through the court. It does however, have the effect of making attorneys look guilty until proved innocent.

The Public Guardian was represented by Glenn Campbell and there were three respondents, all of whom were in attendance. The respondents were relatives of P and I think at least two had been his/her attorneys. I don’t know all the reasons why the OPG was challenging their continuation as attorneys but the one issue that came up in court was gifts made from P’s assets to two of them. So it might well be that the challenge originated from the third.

The gifts in question were substantial and well beyond what would normally be acceptable but, in this case, the OPG said that it was not in P’s interests to investigate further. This was because it was very clear that P intended the gifts to be made and it was estimated that, taking into account remaining assets and P’s life expectancy, there would be sufficient money remaining to pay for his/her care needs. I was rather surprised by this as P was in his/her mid-sixties and the sum of money would not last for many years if P was in a care home. There was no mention of the type of care or the state of P’s health, which might have made all the difference.

The judge said she could make no order on the gifts because there was no application in front of her and the matter was now complicated by the fact that P had moved to Scotland and would be subject to a different legal regime. However, it was now on record that the OPG did not have any concerns on the matter.

As to the substantive matter of the removal of the attorneys, I think the judge said that a discussion prior to the hearing had achieved resolution and the attorneys were prepared to relinquish their powers to a deputy or equivalent to be appointed in Scotland. If the attorneys were not prepared to formally relinquish their powers, they were given a date by which to make an application to restore them i.e. the onus was on them. They were assured by the Judge that at this stage there was no finding against them. The Judge asked if they understood and it was not at all clear that they did.

As to costs, the OPG was not seeking any but P’s barrister would be paid, as is usual, from P’s assets. 

My thoughts

I was particularly interested in the decision about gifting and how the outcome relied on P having made his/her wishes very clear in advance of losing capacity. I have done the same thing in respect of my LPA, having left a letter with one of my attorneys (who is also a solicitor). The rules about gifts that can be made from P’s assets by attorneys and deputies are very limiting. Even with clear instructions, it will still be necessary for my attorneys to apply to the court to make the particular gift I want to make and to continue standing orders.

The rules about gifts are set out in Public Guardian Practice Note PN7 (giving gifts).

Conclusion

This was a pretty chaotic experience, only made worse by the fact that the judge appeared in a tiny part of the screen under the name of someone I later discovered was the court clerk! I assume there had been a problem with the judge’s camera or microphone and they had swapped places. Since the view of her was sideways in the courtroom and everyone else was facing their screens, it took a moment even to identify where her voice was coming from when she first addressed me.

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 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. She tweets as @GeorgeMKeynes