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Court of Protection application

PleaseBeKind

New member
Oct 31, 2020
5
Hi,

I'm new here. Came across some of the threads whilst filling out CoP application and would like to ask advise of people with experience.

My mother's partner was recently diagnosed with Alzheimer's dementia. The very next day he was taken by his daughter to another country where she lives. The move appears to be long term although nothing was said to this effect when leaving. P's biological daughter is very much against our involvement with P. Shortly after the move, she made an application for LPA but my mum has objected to it being registered as we have reasonable doubt to believe that the donor was not in capacity at the time it was taken. We lived with P for a long time before his mental health begun to deteriorate and he started to show symptoms of dementia.

Mum made an application to CoP, and asked for an order of joint deputyship for myself and biological daughter. In my part of the application I am requesting to be part of proceedings and at the stage where I am filling out a witness statement explaining my reasons. Though order of joint deputyship would be better and considerably less expensive, there is an issue of conflict of interest and the fact that the biological daughter will not want to cooperate on these terms, as we have little contact otherwise. Another issue is that she lives abroad.

Would it be worth asking the Court for an order of sole deputyship in my name with a solicitor to carry out all the legal work, and how likely the Court to agree to this since P resides abroad in the care of his daughter at present?

I was advised that most likely outcome will be where there is disagreement is a panel appointed deputy. I would be interested to hear from people who have expereince either similar to my own or who have knowledge of the proceedings.
 

Louise7

Registered User
Mar 25, 2016
2,609
Welcome to the forum @PleaseBeKind Your situation is complex so it will be best to seek specialist legal advice. I understand that deputyship can be made in respect of british citizens living abroad, although this is rare. From what you have posted your mother's partner's daughter is likely to oppose the application, plus your mother has made the application and you are now considering replacing her. The added difficulty is that someone will need to confirm whether your mother's partner has mental capacity or not, which may not be easy now he is living abroad. If you conduct an internet search for solicitors in your area who are specialists in court of protection matters you will hopefully find someone who will be able to give you the specialist advice that you need. Sorry not to be more help but it is a very complex situation.
 

nitram

Registered User
Apr 6, 2011
21,299
North Manchester
Agree that you need informed legal advice, you could see if there are any relevant specialist listed on

The COP essentially only has authority over assets in the UK, there are some arrangements that can be made with EU member states, these are likely to end at end of December.

It might be worth considering taking steps to protect your Mother's share of any joint assets.
 

PleaseBeKind

New member
Oct 31, 2020
5
Welcome to the forum @PleaseBeKind Your situation is complex so it will be best to seek specialist legal advice. I understand that deputyship can be made in respect of british citizens living abroad, although this is rare. From what you have posted your mother's partner's daughter is likely to oppose the application, plus your mother has made the application and you are now considering replacing her. The added difficulty is that someone will need to confirm whether your mother's partner has mental capacity or not, which may not be easy now he is living abroad. If you conduct an internet search for solicitors in your area who are specialists in court of protection matters you will hopefully find someone who will be able to give you the specialist advice that you need. Sorry not to be more help but it is a very complex situation.
Thank you for your reply.
I agree in that it is a complex situation. I would like to clear up misunderstanding; I am not replacing my mother in the application but rather she has proposed me as a deputy jointly with the biological daughter. I don't see this working out as the daughter will not agree to this. After an objection was raised with OPG, they are carrying out their own investigation, part of which includes conducting a virtual assessment I believe. Capacity could not be tested as P moved to another country day after being diagnosed. I have tried contacting the consultant psychatrist who diagnsosed mum's partner but he has moved on from the post he held and I couldn't obtain his contact details. Even if I did, I suppose he could not say anything for certain as Mental Capacity was not tested at the time and as capacity is assumed until proven otherwsie, I wonder how it can be proven retrospectively despite it being established that person is not in capacity as of now.
 

PleaseBeKind

New member
Oct 31, 2020
5
Thank you for your reply.
I agree in that it is a complex situation. I would like to clear up misunderstanding; I am not replacing my mother in the application but rather she has proposed me as a deputy jointly with the biological daughter. I don't see this working out as the daughter will not agree to this. After an objection was raised with OPG, they are carrying out their own investigation, part of which includes conducting a virtual assessment I believe. Capacity could not be tested as P moved to another country day after being diagnosed. I have tried contacting the consultant psychatrist who diagnsosed mum's partner but he has moved on from the post he held and I couldn't obtain his contact details. Even if I did, I suppose he could not say anything for certain as Mental Capacity was not tested at the time and as capacity is assumed until proven otherwsie, I wonder how it can be proven retrospectively despite it being established that person is not in capacity as of now.
Thank you for the reply.

No joint assets, only property in sole name of P, which his daughter is proposing to sell, therefore cutting ties with UK. This will leave my mother in a difficult situation as you can imagine. It is quite clear to us that daughter is doing this. If it weren't for her involvement, P would stay in UK and my mother was quite prepared to look after him. The actions so far indicate that what she is doing is not in best interests of P from what we know of Ps wishes and intentions. It is also not clear how much involvement of P in these decisions.
 

Louise7

Registered User
Mar 25, 2016
2,609
I would like to clear up misunderstanding; I am not replacing my mother in the application but rather she has proposed me as a deputy jointly with the biological daughter.

Sorry for the misunderstanding, as you had posted "Would it be worth asking for deputyship in my sole name" it seemed that you were intending to be the only deputy.

The fact that someone has been diagnosed with dementia does not mean that they have lost capacity, plus capacity can apply in respect of some decision making but not others. You raise the difficulty of a 'retrospective' assessment of capacity and in terms of an LPA, as long as the person making the LPA understands the situation at that moment, and there is a witness to confirm this, then the LPA would be deemed valid. The OPG will look into your mother's objection to the registration of LPA alongside her application for deputyship and although you say that you have "reasonable doubt to believe that the donor was not in capacity at the time" this will be difficult to prove. Depending on how long your mother has been with her partner she may be deemed to have an interest in the property so worth discussing this with the solicitor too in terms of protecting her assets.
 

nitram

Registered User
Apr 6, 2011
21,299
North Manchester
If P lacks capacity and is abroad selling the property is going to be a legal nightmare.

It could be advantageous to get expert legal advice as to whether or not your mother has a beneficial interest in the property

 

Palerider

Registered User
Aug 9, 2015
2,150
North West
I have tried contacting the consultant psychatrist who diagnsosed mum's partner but he has moved on from the post he held and I couldn't obtain his contact details. Even if I did, I suppose he could not say anything for certain as Mental Capacity was not tested at the time and as capacity is assumed until proven otherwsie

A very difficult situation for your mum and you. I wouldn't assume that capacity was not tested by the psychiatrist that saw P and I think its important you find this psychiatrist who may be able to shed some light on matters -they are a missing link at the moment. I would ask if you could have the psychiatrists GMC number and see if you can find them that way.
 

nitram

Registered User
Apr 6, 2011
21,299
North Manchester
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PleaseBeKind

New member
Oct 31, 2020
5
A very difficult situation for your mum and you. I wouldn't assume that capacity was not tested by the psychiatrist that saw P and I think its important you find this psychiatrist who may be able to shed some light on matters -they are a missing link at the moment. I would ask if you could have the psychiatrists GMC number and see if you can find them that way.
My mother was present at the meeting with consultant psycholigist and on that day, there wasn't any such test done.
Thinking about it, even if I was able to track down the Dr, his reply as to his perceived assessment of capacity on the day would be speculative. LPA was applied for a couple of months later. As I don't know who the certifier was at the time of completing LPA form, it is difficult to predict the outcome to the objection of validity of LPA. If it was a medic, I assume LPA will be registered. Does anyone know what would happen to the application? Would Court still consider the validity if OPG invalidates the objection?
 

nitram

Registered User
Apr 6, 2011
21,299
North Manchester
If it was a medic, I assume LPA will be registered
You can check if it is registered
Would Court still consider the validity if OPG invalidates the objection?

It has the power to do so, most unlikely unless the OPG asked for clarification.
 

PleaseBeKind

New member
Oct 31, 2020
5
You can check if it is registered


It has the power to do so, most unlikely unless the OPG asked for clarification.
thank you.

My mum objected in time before it was registered, and an investigation is being carried out. OPG should report back on their findings before proceeding to register it I assume.