42-49 High Holborn
London WC1V 6NP
B e f o r e :
|- and -
The respondent in person and unrepresented
Hearing date: 10 June 2015
Crown Copyright ©
Senior Judge Lush:
"Court of Protection Rules may, in particular, make provision … for the exercise of the jurisdiction of the court in such circumstances as may be specified, by its officers or other staff."
"7A. - (1) The Senior Judge or the President may authorise a court officer to exercise the jurisdiction of the court in such circumstances as set out in the relevant practice direction.
(2) A court officer who has been authorised under paragraph (1) -(a) must refer to a judge any application, proceedings or any question arising in any application or proceedings which ought, in the officer's opinion, to be considered by a judge;(b) may not deal with any application or proceedings or any question arising in any application or proceedings by way of a hearing; and(c) may not deal with an application for the reconsideration of an order made by that court officer or another court officer."
The originating application
(a) her eldest son, DN, is 57 and lives in Jamaica.
(b) her middle son VN, is 53. He had a stroke when he was 26 and lives in a residential care home.
(c) her only daughter, DS, is 52 and lives in Stanmore, but they have no contact with each other for twenty years.
(d) her youngest son, GN, is 47, lives in Hayes, Middlesex, and is a builder.
"I have been approached by CN's social worker and then subsequently met with CN to assist her with her property and financial affairs. CN attends Bentley House who have recognised that she has memory and cognitive difficulties which are now such that she is not remembering to pay her bills and is unable to control her property and financial position.
Following discussions with treating doctors I have agreed to make an application on her behalf to be appointed to assist her with her property and financial affairs as deputy. When meeting with CN I was advised that she has four children whom she does not wish to assist her nor did she wish them to be appointed as deputy."
The application for reconsideration
"To review the order of officer Rob Ryan appointing a deputy for property and affairs made on the 16th day of June 2014 in which it was incorrect and has suffered from a procedural error or irregularity."
"I am the son of CN, where I am now acting on her behalf. I have had no notice of the proceedings of this case where I wish the case to be reviewed so that I will have the opportunity to be heard.
Officer Rob Ryan acted wrong in law and exceeded his jurisdiction by acting in his own cause which is in breach of the rules of natural justice not giving me the opportunity to be heard.
Furthermore that there was a real possibility that the decision maker was bias. Natural justice comprises two basic rules: the right to an unbiased decision maker and the opportunity to be heard where there is a want of 'specific performance of a public duty' in which they have failed to perform.
It can arise where a judge or decision-maker has shown a direct interest in promoting the cause that is being considered in the proceeding. Officer Rob Ryan acted ultra vires acting beyond the scope of his powers."
"In her application papers Julia Newland stated that CN has four children 'whom she does not wish to assist her nor did she wish them to be appointed as deputy.' The court is particularly interested in the following issues or questions and these should be addressed in the report:
(1) Did CN hold this view?
(2) Does CN still hold this view?
(3) If so, why does she not wish any of her children to assist her or to be appointed as deputy?
(4) In particular, why does she not wish GN to assist her or to be appointed as her deputy?
(5) Is CN satisfied with her existing deputy, Julia Newland?
(6) Any other matters that may assist the court in dealing with this matter."
The Court of Protection Visitor's report
(1) Did CN hold this view? (That's she does not wish her four children to assist her or be appointed deputy)Because of her poor current short term memory it was quite hard to have her tell me she did hold this view.
(2) Does CN still hold this view?Yes, she does hold this view.
(3) If so, why does she not wish any of her children to assist her or to be appointed as deputy?"I went through this question at least five times over the course of the two visits. I asked her who she would like to help her manage her money and her bills. She went through the suitability of her children as helper, one by one.DN was in Jamaica so he could not do it. VN was in hospital and could not do anything for himself. DS she had not seen for twenty years and GN she did not want to come anywhere near her money or the house. CN expressed a preference for EG to help her because she trusted him. I understand him to be a cousin and church minister but I understood from Ms Bhardia that he did not want to accept the responsibility. CN struggled to understand why he would not."
(4) In particular, why does she not wish GN to assist her or to be appointed as her deputy?"CN was adamant she does not want GN to take over her affairs. She said he was trying to sell the house and it did not belong to him. The reason that it was in his name was because they had needed to put his income on the application to get the mortgage. She said he hadn't paid a penny towards it. She also said that the only time he came to see her was to ask for money."
(5) Is CN satisfied with her existing deputy, Julia Newland?"Given CN's current short term memory she was unable to remember Mrs Newland at all at the first visit. I found a picture online on Mrs Newland's firm's website and showed it to her. She has issues with her spectacles and thus her sight. She told me that the deputy's face seemed familiar to her without any real conviction.Ms Bhardia rang the deputy who spoke to CN by phone. I could only hear one side of the conversation but she held a perfectly sensible conversation and this gave me the impression she had some recognition of who she was speaking to. However because of this deficit I asked for the second meeting to be arranged in the hope that CN's memory would be jogged.At the second meeting, at which Mrs Newland attended, CN said her face seemed familiar. The deputy brought along CN's file and documents and by this stage Ms Bhardia had carried out running repairs to the broken spectacles and CN demonstrated that she could read the balance on her bank statement and she could understand what this was. All three professionals explained what Mrs Newland's role was and ultimately she agreed that Mrs Newland would carry on helping her with her finances."
(6) Any other matters that may assist the court in dealing with this matter.""Various professionals have raised the possibility of signs/symptoms that there is more to this client's presentation than Alzheimer's. Ms Bhardia said she suspected that CN might have bipolar affective disorder. It is recorded that she has severely abused alcohol. The carer on the first occasion reported that CN believed someone was moving things around the house, which led me to suspect she may be hallucinating or delusional.It is not possible to have any accurate views on the historical family dynamics. Mrs Newland remarked that she had reported allegations about GN as they had been told to her but, to be fair to GN, she had no way of knowing how much weight could be given to those without a comprehensive family background and further evidence.I am simply not in a position to say on the information I have seen if CN's view of her son GN's conduct is rooted in reality or if there is an element of paranoid delusional belief. For this reason I am recommending that the OPG invite SJ Lush to direct the GP/Consultant/Health Authority to make available the client's medical records for inspection."
"I understand from GN's application notice that he seeks a review of the order made by Rob Ryan appointing myself as deputy. GN was not given notice of the application because CN specifically asked me not to. Additionally, Social Services and Harrow Association of Disabled People specifically confirmed at the time of my application that the family were estranged for several years, save for DN who lived in Jamaica. DN was, of course, notified of my proposed application and raised no objections thereto. At the time of the application I had been alerted to the fact that there had been allegations that GN had physically assaulted his mother, not only from her directly but also from three independent sources and I therefore believed it was inappropriate to include him as a respondent and to respect the wishes of CN."
"I believe that CN's health and mental health condition has improved significantly and she is able to express her views and needs clearly. However, there is ongoing concern regarding her in-depth understanding and awareness of her financial management impacting her independence in the community. CN acknowledges that she needs help with her property and financial affairs and has stated to me that she wishes Julia Newland, her deputy and solicitor, to continue to act on her behalf. CN has expressly stated that she does not wish her son to have control of the property and financial affairs nor be involved in her life."
"During my parents' divorce my mother asked that the property be transferred into her sole name but, knowing she was not in a position to buy me out and knowing that the bank would not give her a mortgage, my mother just ignored that she had said so. Whenever I tried to speak to my mother about it she always became very angry and violent. Due to her drug and alcohol abuse my mother was prone to bad tempers and violence, culminating when asked why she had chosen to cheat me. CN destroyed my belongings when I was at work and attacked me with a bottle when I got home from work. I had no choice but to call the police but chose not to press charges. I also had to pay a visit to Northwick Park Hospital to get my injuries caused by the bottle she had used seen to, including having my eyebrow glued back together. Fearing for my safety I was left with no other option but to leave the property. I have an equitable interest in the property. Furthermore it's my right to protect my mother's estate and interest."
The law relating to notification that an application has been issued
5. Members of P's close family are, by virtue of their relationship to P, likely to have an interest in being notified that an application has been made to the court concerning P. It should be presumed, for example, that a spouse of civil partner or any other partner, parents and children are likely to have an interest in the application.
6. This presumption may be displaced where the applicant is aware of circumstances which reasonably indicate that P's family should not be notified, but that others should be notified instead. For example, where the applicant knows that the relative in question has had little or no involvement in P's life and has shown no inclination to do so, he may reasonably conclude that that relative need not be notified. In some cases, P may be closer to persons who are not relatives and, if so, it will be appropriate to notify them instead of family members.
7. The following list of people is ordered according to the presumed closeness in terms of relationship to P. They should be notified in descending order (as appropriate to P's circumstances):(a) spouse or civil partner;(b) person who is not a spouse or a civil partner but who has been living with P as if they were;(c) parent or guardian;(d) child;(e) brother or sister;(f) grandparent or grandchild;(g) aunt or uncle;(h) child of a person falling within subparagraph (e);(i) step-parent; and(j) half-brother or half-sister.
8. Where the applicant decides that a person listed in one of the categories in paragraph 7 ought to be notified, and there are other persons in that category (e.g. P has four siblings), the applicant should notify all persons falling within that category unless there is a good reason not to do so. For example, it may be a good reason not to notify every person in the category if one or more of them has had little or no involvement in P's life and has shown no inclination to do so.
9. Where the applicant chooses not to notify a person listed in paragraph 7 because the presumption has been displaced (see paragraphs 6 and 8 above) the evidence in support of the application form must also set out why that person was not notified.
"When meeting with CN I was advised that she has four children whom she does not wish to assist her nor did she wish them to be appointed deputy."
"CN was adamant she does not want GN to take over her affairs. She said he was trying to sell the house and it did not belong to him. The reason that it was in his name was because they had needed to put his income on the application to get the mortgage. She said he hadn't paid a penny towards it. She also said that the only time he came to see her was to ask for money."
"States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests."