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Court of Protection – Part 10


I went to a training course recently presented by Senior Judge Denzil Lush, it is always interesting to hear from the “horses mouth” so to speak.  Senior Judge Lush presides over many of the cases that I have discussed and is therefore put into the sometimes difficult position of making the judgements.  So what did he have to say?


He talked through some of the cases that I have already discussed in earlier blogs.  He made the point that the Court will try hard to accommodate claimants and defendants, but in one case where the defendant kept trying to have the hearing postponed the Court gave up and heard the case in her absence.  In this particular case they had asked for information from her and she had been continually evasive.  He pointed out that she was entitled to her Article 6 Rights under the European Convention of Human Rights (Right to a Fair Trial), but after so much delay, so was the patient (the person with a cognitive impairment that the case was about) and too much delay denied the patient of their Article 6 Rights.  This was the case about financial abuse by an attorney and the attorney did not want to have to answer to the Court for their actions.  The hearing went ahead and the Court removed the attorney and had an alternative appointed to act for the patient.


Senior Judge also talked about another case where the family had made veiled threats not to visit the patient, if they were removed as attorney, as they would not be “able to face them”!  He said that the Court does not look favourably on these kinds of threats at all and even if the disgraced attorney is the only person who visits the patient, the Court will still not concede to this threat and consider it in the best interests of the patient.


He said that historically there used to be some investment codes and the Office of the Public Guardian are looking into creating some guidance for attorneys and deputies on investing, to help when the attorneys don’t understand their duties.


There is a phrase in the Courts, which is a concept of “clean hands”, the Court will look far more favourably on a party that has clean hands, ie someone who hasn’t stolen money or made gifts of the patients estate, where they co-operate with the OPG when information is requested and where if they want to make gifts, they make an application to the Court for approval.


So the message of Senior Judge Lush would be to be cautious, helpful, co-operative and always put the patient first, before the needs of the attorney where there is a conflict.  It is probably good advice about how we should live our lives in general!