
John Howard
Lawyer
Property & Affairs OSPT
When P is joined as a party in property and affairs applications in the Court of Protection, the Official Solicitor is very often appointed to act as P’s litigation friend. The majority of these cases are statutory will and statutory gifting applications, and the Official Solicitor’s office is involved in several hundred of such matters each year. There are certain issues which are commonly overlooked in the preparation of these applications, and which can (and often do) cause avoidable delay and complications in the proceedings. In this context, the Official Solicitor would particularly highlight the following issues that applicants should focus on when preparing their statutory will and gifting applications:
- Provide up to date and complete information regarding P’s finances – this should include valuations of their assets and any outstanding liabilities, and also schedules detailing their annual income and annual expenditure. If any material changes to P’s finances are expected in the foreseeable future, details of these should also be provided.
- Provide good quality decision specific capacity evidence. The capacity assessment in a statutory will application should address P’s testamentary capacity. In a gifting application it should address P’s capacity to make the proposed gift. Also ensure that the correct ‘relevant information’ is identified in section 5.1 of the COP3 – this will vary depending upon the relevant legal test applicable to the decision to which the application relates.
- Ensure the necessary respondents (as detailed in paragraph 9 of practice direction 9E) are correctly identified and served. Be aware that service will only be dispensed with in exceptional circumstances, and be familiar with the relevant case law on this issue – Re AB [2013] EWCOP B39, Re D [2016] EWCOP 35, BH v JH [2024] EWCOP 12, and BH v JH (Costs application) [2024] EWCOP 9
- Recognise the need for litigation friends for respondents other than P who lack capacity to conduct the proceedings (whether by reason of them being minors, or being adults who lack litigation capacity), and take steps as soon as possible to identity suitable individuals to act as litigation friend for them.
- Ensure the applicant’s supporting evidence focuses on the factors in section 4 MCA 2005 – in particular, P’s past and present wishes and feelings, the beliefs and values which would be likely to influence their decision, and any other factors P would be likely to consider if they were able to.
- Urgent applications – if seeking to have a matter expedited (e.g. due to concerns regarding P’s life expectancy), ensure that clear independent evidence as to why the matter requires urgent attention is provided – Bagguley v E [2019] EWCOP 49, at [44] – “…where an application is brought before the Court of Protection, on what is said to be ‘an urgent basis’, evidence of urgency must be presented which is both clear and cogent. This is to be regarded as a professional obligation on all the professionals involved but most particularly on the lawyers who bring the application.”
Read similar articles in The PDF Journal – ‘Deputyship Matters’