By Jenny Kitzinger, 12th October 2025
The protected party is a woman in her late 80s with dementia and other health problems, currently living in her own home with support from professional carers and family.
She had appointed her daughters, M and H, with Lasting Power of Attorney (LPA) for her property and finance (to act ‘jointly and severally’) and M is also her LPA for health and welfare.
Her two daughters now disagree about the next steps for her finances and where she should live.
One daughter/LPA, M, has applied to the court to release funds to purchase a house so that M could live nearby to her mother. This would be bought in her mother’s name and remain part of her mother’s estate.
The application is opposed by the other daughter and LPA, H, who told the court that she had instigated the care packages for her mother and was also ‘the main carer’.
Both daughters are acting as litigants in person (without legal representation).
I watched two hearings: one on 1st September 2025 and another on 26th September 2025.
Both hearings were before District Judge Hussell, sitting in Cardiff, and were fully remote. Each involved just the two daughters and the judge – plus me as observer.
Both were ‘case management’ hearings: that is, the judge didn’t make a decision about what was in their mother’s best interests in relation to the proposed house purchase, but gave directions designed to assemble the information he needs to make that decision at the next (final) hearing to be scheduled some time in November.
I was initially keen to observe this case (COP 20015780) because it was listed in Courtel/CourtServe with the descriptor “WILL, CODICIL, GIFT OR SETTLEMENT OF PROPERTY”.
I’ve been involved in decision-making about such things for people in my own family – and have been finance LPA/deputy for two relatives.
When a person lacks capacity to make decisions about wills, gifts or property, it can be difficult to determine what decision is in their best interests – and different family members (including those appointed to work together as someone’s LPA) may have different views on this.
Most such disputes do not end up in court. But cases which do are likely to address issues which will resonate with many families, and it is informative to see how judges decide on best interests.
In neither hearing was the judge in a position to come to a decision – but it was interesting to observe the process of ensuring that the right information would be before the court and how family conflict was managed. I’ll first describe the two hearings and then make some observations on how the judge conducted them.
1. The two hearings
Hearing 1 (1st September 2025): (Renewed) directions for a capacity assessment
This first hearing did not address the substance of the case because there was no evidence as to whether or not P had capacity to litigate or make her own decisions about the matter brought before the court. It seemed that holidays and a ‘backlog’ in workloads meant that the relevant capacity assessment would not be conducted for another week. So, the judge listed the next hearing for late September to accommodate this.
I wondered if the daughters might have reservations about the need for formal expert assessment. The applicant daughter, M, said she had served her mother with notice about the application and tried to explain it in simple terms and the respondent daughter, H, expressed concern about the assessment causing their mother stress (a concern I can certainly understand). But the judge explained why a formal expert assessment was needed. He was also explicitly helpful to the two daughters as litigants in person in facilitating the next steps. He acknowledged, for example, that, where parties had legal counsel, the legal team would translate an order from the court into a ‘letter of instruction’ to an assessor but, as they were litigants in person, he’d tried to help ensure the expert assessor was clear about what was needed to inform the court.
Hearing 2 (26th September 2025): Directions for P’s participation, financial information, evidence and witness cross-examination
The capacity assessment had been completed in time for this second hearing, and it confirmed that P did not have capacity to litigate or to make the relevant decision about buying a house nearer the applicant.
This hearing addressed P’s participation going forward and the judge gave directions about additional financial information required and he helped the litigants in person understand what would happen at the final hearing
Capacity, wishes and feelings, and P’s participation: The judge invited P’s daughters to make any observations about the capacity assessment. (I believe both women had been present for the assessment). H said “It just confirmed what I believed” and M also accepted the finding, but asked:“Because she hasn’t got financial capacity does that mean her beliefs and feelings are not going to be heard?”
The two women took different positions on the weight that might be given to what their mother said when asked about buying a property nearer to M:
M: She knows what she feels and what she’d like to happen.
H: But she gives different answers at different moments on different days or even the same day. So she can give an opinion but it’ll be different on different days.
M: My mother will say consistently she’d want me nearby.
H: But she doesn’t understand the complexities.
The judge drew this exchange between the two to a close with a simple: “Thank you for your submissions on that point”.
The judge then moved on to considering ways in which their mother might participate in proceedings. One possibility was for their mother to attend the next hearing and have the “opportunity to address me”, but neither the judge nor P’s daughters thought that would work. Another possibility would be for P to have her own legal representation but the judge considered that this would be an unnecessary cost to the estate and he was satisfied “your mother’s interests and position can be properly secured by evaluation by the courts“.
Financial information required: In order for the court to evaluate their mother’s best interests, up-to-date information was needed about the proposed purchase of a property near the daughter who’d made the application (giving area and costs examples). The judge also requested a statement about P’s finances: her savings, income and regular outgoings. This financial statement would have to be agreed by both parties.
As with other issues, this request prompted some tension between the two daughters. M said it was difficult to engage her sister which left them “in the soup”, and H, for her part, said she’d need M to provide her with relevant details. Each implied the other was to blame for problems working together. M said: “I was always hoping to work with my sister, Mum was keen for that to happen too” and H later responded with “my sister has over two years…” before being cut off by the judge
Judge: That is a different matter. That doesn’t go to the matter I have to grapple with.
H: I mention is as M bought it up…
Judge: There will be a full hearing.
The judge gave P’s two daughters 14 days to produce the agreed financial statement and another 14 days after that to review their own statements. He directed that, if it proved impossible to come to an agreed statement on every point about P’s finances, then they could indicate which ones they disagreed about. This should be “a simple summary of disagreements”, he said, “I don’t need the narrative”.
Evidence, witnesses and supporters: The judge was clear that the next hearing should be in person and he would consider all the submitted statements (but not the “extensive emails” sent to the court) and he’d allow “limited cross-examination of each other”. He checked whether the two women were capable of being in the same room as one another or whether he’d have to put any “special measures” in place.
Asked (by M) whether partners could come to the hearing he indicated that they could but cautioned: I will make a decision on the day – I don’t want the court, filled with the entire family, becoming overwhelmed; I don’t want the Court of Protection put in the position where its ability to manage the case is impeded by a full-blown family dispute“.
Asked by M about witnesses’ contribution, he said he’d consider the written statements which they’d already submitted (apparently all supporting M’s position that a house should be bought for P near her). The judge said these witnesses should also make themselves available on the day in case it was necessary to call them.
At this point, H commented: “I don’t have any witnesses. It looks like I’m going to be facing the whole of my family”.
Judge: “Sadly one of the byproducts of these disputes is it can involve whole family divisions. But I can assure you that your mother’s best interests is the focus, You will not be put in a position where you feel marginalised in the court – neither of you.”
Date of next hearing: Finally, the judge asked if either litigant had pre-existing commitments they’d like him to consider in scheduling the next hearing – which would take place sometime after the 28 days needed to assemble evidence and review statements. This led to another tussle between the two litigants in person – M indicating her working days and her responsibilities for looking after horses, and her sister, H, commenting that “If consideration is going to be given to caring for horses” then she’d like the judge to note which afternoons she was committed to caring for her mother, a comment which prompted a retort from M that H was going on holiday abroad “from December to January – so I think mum will cope without one day of care from H!”.
The judge at this point intervened to comment on the way in which the family dispute was “trickling, indeed cascading” into the discussion in ways unhelpful to addressing their mother’s best interests. He was sure their mother would not have wanted such conflict. He proposed they might source some mediation for themselves – but I think without much expectation of success!
2. Reflections on the conduct of the hearings
I’ll consider the way in which the judge supported the litigants in person and managed the conflict between them, and also how he facilitated transparency for me as an observer.
Supporting litigants in person and managing conflict: Court of Protection judges are very experienced in dealing with fraught situations and family dispute. The stakes are high when family members disagree about the care or finances of a relative who lacks capacity to make their own decisions, and there are likely to be different perspectives on who is being most loving, or reasonable or responsible, who started what, or who is to blame for the current situation. Family members may also have decades of resentment between them and have developed finely-tuned ways of embedding little digs at one another when in conflict (the kind of asides that are filtered out by barristers when parties have representation).
The judge dealt with the situation in this case with a respectful, firm, but light touch that kept the focus on P’s best interests and, I thought, reflected long experience in this area of work.
It was also noticeable to me (especially as I usually watch cases with multiple barristers involved) how this judge supported the two women as litigants in person, and was explicit about their, and his own, roles e.g. he assured them that when it came to the in-person court hearing ‘I will do my best to help you on the day: I can’t advise you but I will help”.
He made procedures clear, and was thoughtful about what information they might need in order to carry out their roles effectively, and what support the court could offer and what to expect e.g. he said the court would prepare the bundle which would include all the witness statements but “It won’t include the significant email communication you’ve been sending the court. I’ll deal with the evidence”.
Observing this case led me to read a very useful section in the Equal Treatment Bench Book. The first chapter on litigants in person is designed to “identify the challenges both faced – and caused – by LIPs […], and to provide guidance to judges with a view to ensuring that both parties receive a fair hearing where one or both is not represented by a lawyer.” I could see how some of the practical suggestions were relevant to this case.
Many of the suggestions made for how to conduct proceedings when there are litigants in person are also, as it happens, useful to an observer. For example, in my experience where there are no litigants in person, judges and barristers use shorthand with each other, which can make it harder for family, and observers to follow what is going on – although presumably legal teams prepare and debrief litigants, so at least represented parties are clear what is happening.
Open justice: In terms of open justice this all worked well from my point of view. I received the Transparency Order and the links for both hearings in good time.
Since there were no lawyers involved, my request for position statements (made for the first hearing) did not bear fruit. I suspect the two litigants in person had not submitted position statements: in any case, there was no suggestion that they could or should share them with me.
The judge seemed positive about my presence from the outset. In the first hearing I observed, he explicitly acknowledged the problem created by the absence of position statements and very usefully summarised the background to the case for me and checked whether I had any questions. In the second hearing, he checked that I had no need for an opening summary and thanked me for coming at the end.
I appreciated this, as I had been concerned when, just before the hearing, I was informed that the litigants were not represented, so there were no barristers in court. I realised that the only people present might be the judge and the two litigants. I usually observe cases about serious medical treatment – involving a full court room and multiple barristers, solicitors and expert witnesses, a context in which I feel relatively unobtrusive. I was therefore self-conscious about joining this hearing and had to think about what was appropriate.
I usually tick the ‘observer’ box when entering a hearing on the court’s CVP system to observe a hearing. However, I know that entering in this way blocks my use of my camera and microphone entirely (the ‘observer’ cannot opt to turn on these facilities). This is always a problem if an observer is then asked to make themselves visible or to respond to questions: judges are not always aware of how the interface works for observers, I think. Entering as an “observer” also makes it difficult to intervene if, for example, you want to challenge a Transparency Order. However, I still sometimes use the “observer” option as it feels ‘safer’: it means I won’t accidently broadcast any sound from my end into the courtroom, and it means I’m certain that nobody in court can see me.
Given the small number of people involved in this hearing, though, I certainly didn’t think it would work to be an invisible ‘lurking’ presence. I joined by clicking the call type ‘Video & audio’ (but then switched both off). When the judge took the time to introduce me, I was then able to turn on my camera. He explained my role, the constraints imposed by the Transparency Order, and checked with P’s daughters that they were comfortable with my observing.
Neither daughter objected to me being there and each actually addressed me during the hearing to explain a couple of things they wanted me to understand. The daughter who was the applicant, for example, addressed me directly to explain that the house would be bought in her mother’s name and remain part of her mother’s estate. The daughter opposing the application was keen to emphasise to me that it was she who had instigated the care packages for her mother and was also ‘the main carer’. Being addressed by the LiPs felt inappropriate, but I appreciated the clarifications/additions to the judge’s summary of the situation. It was also slightly awkward that each seemed to want to persuade me that her position was correct. They also asked how to address me: as ‘Miss’ or ‘Mrs Kitzinger’ – and it didn’t feel right to ask for Ms or Professor! As an observer, the aim is to as unobtrusive as possible and this didn’t quite work on this occasion.
Unfortunately, although my camera worked my microphone did not (the judge had experienced the same problem earlier and left and rejoined. I did not do this as it was late in the day that I discovered the problem and it would have been disruptive – but I used the chat box or a thumbs up to respond to the judge who was checking that I had the Transparency Order, and otherwise tried to remain still (occasionally finding myself nodding in recognition of something said by each of the daughters – and stopping myself!).
The second hearing I attended felt more comfortable from my point of view – my presence was not a surprise to either litigant in person, and they would have had time to research the role of observer if they wanted to. They both again confirmed they were happy for me to observe and on this occasion neither LiP addressed me. I joined with camera off: the judge invited me to turn it on, and I kept it on throughout. The fact that it felt much easier in the second hearing is an indication perhaps of how quickly we could all adapt.
I hope to be able to attend the next hearing (actually going to the physical court room in Cardiff this time) and will write another blog about the judgment in this case.
Jenny Kitzinger is co-director of the Coma & Disorders of Consciousness Research Centre and Emeritus Professor at Cardiff University. She has developed an online training course on law and ethics around PDoC and is on both X and BlueSky as @JennyKitzinger
Promoting Open Justice in the Court of Protection 
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