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What are the Court of Protection’s powers when the subject of proceedings dies?

22 August 2018

Readers might remember that Mr Fitzgerald, a very persistent maker of Court of Protection applications, reappeared a few weeks ago when his latest application was dismissed as without merit.  The last instalment can be found here

It seems that Sir James Munby had not heard the last of the tireless Mr Fitzgerald after all.  Mr Fitzgerald made one more application just before Sir James Munby’s retirement.

In this application, Mr Fitzgerald asks for the recent judgement in his Aunt’s case (see blog post here) to be withdrawn because ‘ It is not given in any recognised court or jurisdiction; (2) It misrepresents the evidence presented in Application; (3) It displays transparent bias and injudicious prejudice.” ‘

The Judge commented:

‘I do not propose to take up time dealing with grounds (2) and (3). As readers of all my previous judgments will appreciate, these are merely the latest of many attempts by Mr Fitzgerald to rubbish any judgment by any judge with whom he chooses to disagree.’

Mr Fitzgerald was, he said, ‘unable or unwilling’ to understand the difference between the matter being transferred out of the Court of Protection (which it had not been) and the case simply being heard ion a different location by a Court of Protection judge.

Helpfully for practitioners, Mr Justice Munby sets out the Court of Protection’s powers when the subject of proceedings dies.  The position is:

‘Although the Court of Protection lacks jurisdiction to make substantive orders, whether health and welfare orders or property and affairs orders, after P has died, this does not mean it lacks jurisdiction where it is necessary to exercise jurisdiction to ‘tie up any loose ends’ – which is what I was doing here and, moreover at Mr Fitzgerald’s express invitation.  ‘

Unsurprisingly, Sir James Munby was not impressed with this latest application.  His summary says it all”

‘Mr Fitzgerald’s latest application is totally without merit. It is a time-wasting abuse of the process, which I accordingly strike out. If Mr Fitzgerald continues to display such forensic incontinence, he may find himself again subject to an extended civil restraint order.’



Firstly we wish Sir James Munby a long and happy retirement.

The clarification of the Court of Protection’s role is very helpful for practitioners.  Many people still seem to be under the impression that post death the Court of Protection must down tools.  That is not the case, at least as far as finishing off the procedural aspects.  Indeed, readers might remember that in the case of Gladys Meek, the Court of Protection made a point of deciding post Gladys’s death whether or not the identities of the ‘handbags and gladrags’ deputies who bought themselves cars, computers, handbags and other luxuries with their aunt’s money, could be revealed. (see blog post here) Senior Judge Lush decided that yes, they could, and so the wrongdoers were named and shamed.

For more information on Deputyships please click here



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Lynne Bradey


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