The Court of Protection at its best?

By Georgina Baidoun, 24th July 2024

The Open Justice Court of Protection Project posted the following alert on X and I felt I should rise to the occasion, given that the appointment of deputies for property and financial affairs is my particular interest area. The court listing isn’t specific about the type of deputy but there are very few appointments of health and welfare deputies.

According to the Transparency Order, AL, the protected party, was the applicant. TL was the respondent. I’m afraid that order of things didn’t make a lot of sense to me in the context of the current hearing, but perhaps it reflects the history of the case. Neither party had legal representation. 

The judge explained that she had arranged this hearing so that she could explain the actions she was going to take, rather than TL simply receiving a piece of paper. She didn’t anticipate that there would be any need for further hearings. 

From the conversation that took place between the judge and TL (there was no opening summary and I did not request position statements, given that the parties were unrepresented), I put together the following likely scenario, but relationships were not clarified and nor was the background to the two essentials in the case. The first was that P was the subject of on-going county court insolvency proceedings and the second was that he had been assessed and found to be lacking in capacity to manage his property and financial affairs and the judge was about to make an order to that effect.

It seemed likely that TL was P’s wife. Since P was being treated in an NHS neurological facility, it also seemed likely that he had been subject to a catastrophic event, especially as the judge referred to the fact that he would be assessed again, possibly in 6 months’ time, when his capacity might have improved. 

TL had applied to become the COP deputy for P’s property and financial affairs and also sought permission to raise an immediate loan to be secured on P’s home (which they jointly occupied and might have jointly owned). It was the judge’s opinion that, with all ‘the additional matters that TL was handling’, the best solution at present would be to appoint an interim professional deputy who would work in P’s best interest, which would also include helping TL. The problem was that there was no money to pay a deputy and the judge was therefore exploring the possibility of employing one who would agree to being paid after the house was sold. Selling the house and downsizing was the longer-term goal but that would require a ‘trusteeship application’.

TL was in contact with a mortgage broker to arrange a loan and was hoping that the judge would give approval for that at this hearing. She wanted to know what information she could share and with whom. The judge agreed that it would be sensible to share with everyone concerned the judgment that P lacked capacity to manage his property and financial affairs. She hoped that the urgency for arranging a loan could be avoided if the impending insolvency hearing was postponed. That was not a matter for her but she hoped the county court judge, with whom she had been in contact, would make that decision once he was informed of the capacity judgment. The priority now was to appoint an interim deputy but no order could be made to that effect until someone could be found who was prepared to undertake the role.

My thoughts

I was very impressed by the sensitivity of the judge in this case. She chose to hold a hearing so that a conversation could take place and so that she could explain what actions she had taken and would be taking to make progress. There was no suggestion of differences of opinion, simply a desire to make what must have been a dreadful situation for TL as manageable as possible.

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