Sophie Hurst, barrister at Kings Chambers, explores some of the key cases and themes from the Court of Protection’s Property and Affairs jurisdiction in 2025.
A departure from the general rule as to costs – Riddle v NA [2025] EWCOP 39 (T3)
This case concerned the appeal of Mr Riddle against an order of a District Judge that there be no order as to costs following a finding that P had capacity to manage his property and affairs and thus, Mr Riddle’s application to be appointed as P’s professional deputy failed.
In the appeal, which came before Harris J, the court upheld the order of the District Judge and found that the departure from the general rule under 19.2 Court of Protection Rules 2017 was justified. Notwithstanding Harris J finding that the application had been brought by Mr Riddle in good faith, the application had nonetheless failed with the protected party having gained “little to no benefit or advantage” from the application being brought.
In responding to a submission made on behalf of Mr Riddle that such a determination may deter professional deputies from making such applications in the future and leave protected parties vulnerable, Harris J commented:
[28] […] the Court is not persuaded the answer to such a systemic problem is that the vulnerable adult, P, should bear the burden of those costs, as opposed to alternative solutions being found. Local authorities pursuant to their safeguarding duties and responsibilities would need to assume the burden of bringing such applications before the court, ensuring P would not fall through a safeguarding gap. Alternatively, the public authority could choose to enter into contractual arrangements to underwrite the costs of professional deputies such as Mr Riddle to bring the applications on their behalf. That may seem a fairer solution than imposing the costs burden on vulnerable adults such as NA.
Retrospective assessments of capacity and costs – Furley Page LLP v KFL [2025] EWHC 1703 (SCCO)
In this case before Costs Judge Whalan, the court was asked to determine the enforceability of costs against an unnamed Defendant with a diagnosis of dementia, who had instructed the Claimant solicitors firm to represent him at a time when, it was argued, those solicitors knew, or ought to have known, he lacked contractual capacity. The court was therefore required to consider the Defendant’s capacity retrospectively.
Paragraphs [13 – 17] of this judgement provide a helpful summary of the relevant legal principles and paragraphs [40-45] set out their application to the facts of this case. Costs Judge Whalan relied upon contemporaneous assessments of capacity, documents and records in reaching his conclusion as to when the Defendant, on the balance of probabilities, lost the requisite capacity, as well as when the Claimants could be said to have had “actual or constructive knowledge” of such incapacity.
Whilst the court ultimately determined that the Defendant had capacity at the time of signing a retainer with the Claimant solicitors, the case provides an important reminder that contemporaneous records must be retained and that considerations as to capacity ought to be thoroughly explored at the time of instruction.
Testamentary capacity – Parfitt v Jones & Anor [2025] EWHC 1552 (Ch)
In this case, in which the daughter of the deceased sought to challenge the validity of her mother’s will, the High Court upheld the established, common-law test of capacity to make a will, as set out in Banks v Goodfellow.
Within the judgement, HHJ Keyser KC was clear that Banks v Goodfellow “does not lay down a memory test” [80.7] but is instead is about a testator’s understanding. Whilst an expert was instructed to provide evidence as to the testator’s capacity retrospectively, the court made a number of criticisms of the report produced and instead placed far greater weight on contemporaneous records and documentary evidence. The court ultimately determined that the testator did have testamentary capacity at the time the will was made.
This judgement emphasises the necessity for a clear, evidential basis when alleging incapacity, with the court expressing stern criticism at the lack of evidence in this case and HHJ Keyser KC observing that “It is, I fear, rather unsavoury and disrespectful to the dead to advance what I regard as a groundless case that a clearly capable testatrix lacked testamentary capacity” [81]
A deputy’s authority to pay P’s drugs debt – EG & Anor v P [2024] EWCOP 80 (T3)
This ex-tempore judgement reported in 2025 concerns the authority of a financial deputy to pay off a drug debt incurred by a protected party. P had been arrested with a large quantity of drugs being seized from his home, the dealer of which was seeking payment of £17,000 from P in recouperation. The matter was brought to the attention of the court by P’s professional deputies and came before the President of the Family Division who determined that the key issue was whether or not P had capacity to make the decision to repay the debt, or not.
The court accepted the conclusions of the consultant clinical psychologist instructed to prepare a report in the case, who had found P to lack capacity to make that decision. Having found P to lack capacity, the court went on to explain, “Ordinarily, in a welfare setting, the court would move on to evaluate P’s best interests and decide whether or not the particular step in P’s affairs should or should not be taken. But as I have indicated, it is common ground that there is no prospect of a court sanctioning a payment of this nature in these circumstances. The court would effectively itself be engaging, albeit at arm’s length, in serious criminality and that is not a step that is to be contemplated.” [19]
At paragraph [7], the court sets out the approach to be taken if P had been found to have capacity, “ If P does not lack capacity, then it is accepted before this court and I accept that he is entitled to ask for whatever sum of money he desires for the particular function for which he has capacity and that the deputies would not be in the position of placing themselves in jeopardy of criminal prosecution were they to abide by his instructions; indeed, they would have to abide by his instructions because, with respect to the sum, it is his money and he would have capacity.”
Hearing cases in private – W v P [2025] EWCOP 11 (T3)
In this case, Rajah J was required to consider whether an application made by P’s wife for a statutory will and to enter into a number of lifetime dispositions, ought to be heard in public or in private. The protected party was a figure who used to be in the public eye and it was accepted that their affairs were likely to be the subject of public curiosity.
Paragraphs [5 – 11] of this judgement provide a helpful overview of the rules and practice directions relevant to whether hearings ought to take place in private or in public.
In determining that the case ought to proceed in private, Rajah J explains at paragraph [13], “In this case, a public hearing which identified P would inevitably result in significant publicity to satisfy public curiosity. That would be a serious intrusion in the private life of P and his family. For reasons on which I will not elaborate here, this could have serious consequences for P and his family. The “supposition” that a transparency order would protect P’s privacy is, in this case, displaced.
I am satisfied that it is not possible to craft reporting or other restrictions which would protect P’s identity and the privacy of P and his family. There is a very significant risk of jigsaw identification unless the reporting restrictions (and other measures such as exclusion of the public from parts of the hearing) were so stringent as to make a public hearing meaningless. This substantially outweighs any legitimate public interest in this hearing being in public, even with reporting restrictions, and amounts to a good reason for the matter to be heard in private.”
The court’s jurisdiction and the authority of a deputy over a minor and their affairs when habitually resident overseas – Irwin Mitchell Trust Corporation Lt v KS & Ors [2025] EWCOP 7 (T2)
This case concerned a child who suffered a brain injury as a result of clinical negligence at birth. Irwin Mitchell Trust Corporation Ltd was subsequently appointed as their financial deputy, however, a year later, the child and their family moved to India.
The deputy made a number of applications to the Court of Protection in relation to the child’s affairs, including to purchase properties in India. The court was therefore required to determine whether it retained jurisdiction over the child and if the deputy’s authority over their affairs remained valid.
At paragraphs [45 – 57] of this judgement, Senior Judge Hilder points to Article 14 of Hague 34 and the associated commentary in the Handbook and the Lagarde Report to explain her reasoning for finding that the Court of Protection did retain jurisdiction and that the deputy did retain their powers, notwithstanding the child’s habitual residence in India.
At paragraphs [53 – 55] Senior Judge Hilder does highlight a caveat to Article 14, that the continuation of such jurisdiction would be subject to any steps taken by the state in which the child is residing to modify, replace or terminate those protective measures currently in place. Additionally, she explains that the conclusion may well be different if the child had never been habitually resident in England, but had been awarded damages in England in respect of injuries sustained on holiday. Such a situation would need to be considered as and when it arises.
Removal of a deputy – AECO [2025] EWCOP 5 (T2)
This case concerned an application by the Office of the Public Guardian to remove AECO’s mother as her financial deputy and replace her with a professional deputy.
Whilst the court ultimately found that AECO’s mother ought to be removed and replaced by a professional deputy on account of multiple failings – including failures to submit annual reports on time, failure to pay the supervision fee as it fell due, mixing AECO’s money with her own, occupying AECO’s property, making questionable transactions and failing to co-operate with professional and statutory bodies – HHJ Cronin reiterated that, “The court will always prefer to have a family member as deputy where there is a family member who is able and willing to take on that responsibility”. [16].
The case serves as a reminder that “the court has an unfettered power to remove a deputy where it is in a protected party’s best interests to do so” [6].
Litigation capacity and retrospective assessments – Johnston v Financial Ombudsman Service [2025] EWCA Civ 551
In this case heard by the Court of Appeal, Mr Johnston sought to assert that he lacked litigation capacity and had done so at the time he had commenced proceedings against the Financial Ombudsman Service which had ultimately been struck out and Mr Johnston ordered to pay costs. The court dismissed the appeal and found that Mr Johnston had failed to rebut the presumption of his capacity to litigate.
Within this judgement, the court provides a helpful summary of the legal principles and leading authorities governing assessments of capacity. At paragraph [66] Baker LJ emphasises “The presumption of capacity is a fundamental principle in our law. As Burnett J observed in V v R, “the underlying policy of the Act is to avoid concluding that incapacity is established unless, after careful enquiry, it is necessary to do so”. Furthermore, “in the context of litigation, a finding of incapacity curtails the right of unimpeded access to the law” – a further fundamental principle. The evidence adduced on this appeal comes nowhere near rebutting the presumption.
When considering how to determine capacity retrospectively, the court endorses the list of evidence identified by Poole J in Public Guardian v RI and Others [2022] EWCOP 22 as being of particular importance, [27] “[…] “… Ideally, where there is a dispute about past capacity which the court is required to determine, it would be helpful to have evidence as to, a. The certificate provider’s experience … b. Evidence from carers and family members … c. Medical evidence, capacity assessments, assessments for benefits, records from carers or activity centres, or other professional evidence roughly contemporaneous with the relevant date … d. An assessment by a suitably qualified and experienced person of P’s current capacity and reasoned opinion as to their capacity … at the relevant time, such opinion being informed by review of relevant medical records, contemporaneous assessments, and the evidence from carers and family members.”