England and Wales Court of Protection Decisions

COURT OF PROTECTION
MENTAL CAPACITY ACT 2005

		First Avenue House 42-49 High Holborn London WC1V 6NP
		6 November 2014

Senior Judge Lush:

1. This is a dispute amongst siblings over the appointment of a deputy to manage their mother's financial affairs.

The family background

2. PMB was born in 1927 and lives in Berkshire. She used to be a cleaner for some of the more affluent residents in her village.
3. She married her first husband in 1947 and divorced him in 1976. He was a farm labourer, who later worked as a lorry driver. She married her second husband, who was a carpenter, in 1984 and he died seventeen months later in 1986.
4. She has five children from her first marriage, namely:

(a) her elder son, JG, who was born in 1947 and lives in Norfolk;

(b) her eldest daughter, RS, who was born in 1950, is a retired nursing assistant, and lives in Northamptonshire;

(c) her middle daughter, KH, who was born in 1952 and lives in Australia;

(d) her younger son, MG, who was born in 1955 and lives in Devon; and

(e) her youngest daughter, DG, who was born in 1964, is a stock room assistant, and lives near to her mother in Berkshire.

5. On 24 September 1999 PMB made a homemade will in which she:

(a) appointed her youngest daughter, DG, to be her sole executrix;

(b) made several specific bequests of jewellery and personal chattels to her children and grandchildren; and

(c) left her residuary estate to her five children in equal shares.

6. PMB has Alzheimer's type dementia, which was first diagnosed in 2012, and since 24 February 2014 she has resided in a nursing home.
7. She has savings of approximately £25,000, most of which is held in an account with the Newbury Building Society.
8. On 18 July 2014 DG and RS applied to be appointed jointly as her deputies for property and affairs. Charles Lucas & Marshall Solicitors, 28 Bartholomew Street, Newbury, Berkshire RG14 5EU acted for them in connection with the application.

The objection

9. On 5 August 2014 JG completed an acknowledgment of service in which he objected to the application. He said:

"In view of my mother's current modest financial situation I do not believe the application made by my sisters to be appointed her deputies has been made with respect to her best interests but has been made maliciously and with the intention, based on sibling disagreements, of continuing to exclude me from participation in my mother's affairs. Requests by myself to be included in matters directly related to my mother have been ignored by both applicants and they continue to refuse to communicate with me. Recently, among other things, they have denied me access to and have undertaken the clearance of the contents and personal effects from my mother's previous home whilst refusing to advise me of how and where these items (some of sentimental value) have been disposed of. I do not believe that my mother would have either wished for or approved of these actions.

I also do not consider DG an appropriate person to manage my mother's financial affairs because of her past inability to manage her own personal finances which have resulted in her running up several thousand pounds of debt. I also understand that social services have recently found it necessary to advise her in respect of her incorrect handling of one or two matters relating to our mother's finances.

With these points in mind and no possibility of any sibling agreements being achieved in the future on matters concerning our mother I feel it would be in her long term interests if the court were to appoint an independent panel deputy to administer her affairs forthwith."

10. On 9 September 2014 I made an order:

(a) warning the parties as to the costs of these proceedings, which were in the court's discretion and may not necessarily be payable from PMB's estate;

(b) requiring an officer of the court to send a copy of the respondent's acknowledgment of service to the applicants' solicitors;

(c) requiring the applicants to respond by 3 October;

(d) allowing the respondent to file and serve a witness statement by 24 October; and

(e) listing the matter for hearing on 4 November 2014.

The witness statements

11. On 30 September 2014 DG filed a witness statement, in which she said that.

(a) JG had been estranged from his siblings for many years;

(b) in the last year he had only visited their mother once;

(c) DG has been informally looking after her mother's financial affairs since the onset of her incapacity about two years ago;

(d) PMB had occupation rights over her house under the terms of her late husband's will. Once she had moved permanently to a nursing home it became necessary to clear the house of furniture and effects;

(e) DG proposed to distribute the chattels in accordance with the terms of her mother's will;

(f) it would not be practical for JG to be appointed as deputy jointly with the applicants: he refuses even to disclose his address to them;

(g) an offer was made to send him a copy of the annual report to the OPG, but so far he has not accepted this offer; and

(h) it would not be cost-effective for a panel deputy to act in this case.

12. On 17 October 2014 JG filed a witness statement, in which he said that:

(a) he and his wife had lived in Spain from 1997 until 2011, when they returned to England and bought a house in Norfolk.

(b) in December 2011 he had visited his mother and was dissatisfied with the standard of care that his sister, DG, was providing. He had offered to move PMB to Norfolk but the rest of the family turned down his offer.

(c) to avoid the costs of a contested hearing, he told the applicants' solicitors that he would be prepared to withdraw his objection if he were appointed as a joint deputy with the applicants. However, his sisters were unwilling to proceed on that basis.

(d) he had not responded to the applicants' offer to provide him with a copy of their annual accounts because he felt that "deputyship encompasses more than just financial matters" and his acceptance would have been tantamount to approving their application.

The hearing

13. The hearing took place on Tuesday 4 November 2014 and was attended by:

(a) the applicants and their solicitor, Michael Overend, of Charles Lucas & Marshall; and

(b) the respondent and his wife, Dorothy.

14. JG had not wished his address to be disclosed to any of his siblings because he lived in perpetual fear of violence from them following an altercation in PMB's house on her 85th birthday in August 2012, when his brother, MG, and RS's husband had manhandled him.
15. JG had contacted the Court Enquiry Service, who told him that the court may be prepared to allow him to keep his address confidential but, unfortunately, he gave no indication of this in his acknowledgment of service, and my directions order of 9 September clearly stated his address as well as that of the applicants' solicitors.
16. Apart from her jewellery, which DG is looking after, PMB's personal chattels are currently being stored at RS's house, because she has space in which to store them. In her will PMB has left her "mirror with the aeroplane detail and all the old family photographs" to JG. It transpired that he had already received all the old family photographs and the mirror, which features images of the Battle of Britain, is currently in storage at RS's house.

The law relating to the appointment of a deputy

17. Sections 1 to 4 of the Mental Capacity Act 2005 provide that, once it has been established that a person lacks capacity to make a particular decision at a particular time (such a person is referred to as 'P' in the Act), then any act done or any decision made by someone else on P's behalf must be done or made in her best interests.
18. The Act does not define 'best interests', but section 4 provides a checklist of factors that anyone making the decision on P's behalf must consider when establishing what is in her best interests. These are:

(a) to consider whether it is likely that P will have capacity in relation to the matter in question at some time in the future (s 4(3));

(b) so far as reasonably practicable, to permit and encourage P to participate, or to improve her ability to participate, as fully as possible in any act done for her and any decision affecting her (s 4(4));

(c) to consider, so far as is reasonably ascertainable, P's past and present wishes and feelings (and, in particular, any relevant written statement made by her when she had capacity) (s 4(6)(a));

(d) to consider, so far as is reasonably ascertainable, the beliefs and values that would be likely to influence P's decision if she had capacity (s 4(6)(b));

(e) to consider, so far as is reasonably ascertainable, the other factors that P would be likely to consider if she were able to do so (s 4(6)(c)); and

(f) to take into account, if it is practicable and appropriate to consult them, the views of anyone engaged in caring for P or interested in her welfare, as to what would be in her best interests and, in particular, as to the matters mentioned in section 4(6): (s 4(7)).

19. If someone lacks capacity in relation to matters concerning her property and affairs or personal welfare, the Court of Protection may make any decision on her behalf, or appoint a deputy to make decisions on her behalf in relation to those matters (section 16(2)).
20. When it appoints a deputy, the Court of Protection exercises discretion and it must exercise this discretion judicially and in P's best interests. The court would prefer the appointment of a family member, if possible, for the following reasons:

(a) in order to respect P's Article 8 right to private and family life and for a number of practical reasons that flow from that;

(b) a relative will usually be familiar with P's affairs, and her wishes and her ways of communicating her likes and dislikes;

(c) someone who already has a close personal knowledge of P is also likely to be better able to meet the obligation of a deputy to consult with her, and to permit and encourage her to participate, or to improve her ability to participate, as fully as possible in any act done for er and any decision affecting her; and

(d) because professionals charge for their services, the appointment of a family member is generally preferred for reasons of economy.

21. Simply preferring family members would, of course, have the effect of negating the court's overall discretion in deciding who or who not to appoint. Accordingly, the court takes into account a wide range of other relevant considerations. These include:

(a) the applicant's own financial track record;

(b) whether there are any county court judgments recorded against them;

(c) his or her criminal record;

(d) the size and complexity of P's estate;

(e) the degree of contact the applicant has with P;

(f) any particular ethnic or religious considerations;

(g) P's own wishes and feelings on the matter, so far as they are ascertainable;

(h) the ability of the applicant to interact successfully with P and his carers;

(i) any conflicts of interest;

(j) any special qualities of the applicant;

(k) any special features of the case;

(l) whether there are any matters to be investigated, such as alleged fraud or financial abuse; and

(m) the expense involved in managing P's property and affairs.

22. There are some circumstances, however, in which the court would not consider appointing a family member as a deputy. These include following situations, and the list is not exhaustive:

(a) the proposed deputy has physically, emotionally or financially abused P;

(b) there is a need to investigate dealings with P's assets prior to the matter being brought to the court's attention, and the proposed deputy's conduct is the subject of that investigation;

(c) there is a conflict of interests;

(d) P is being subjected to undue influence;

(e) the proposed deputy has an unsatisfactory track record in managing his or her own financial affairs;

(f) there is ongoing friction between various family members, which is likely to interfere with the proper administration of P's affairs; and

(g) cases in which there has been a substantial damages award for personal injury and there are various factors that militate against the appointment of a family member. One such factor is that the insurance company which provides the court's security bonds is unwilling to give security of more than £1 million to a non-professional deputy.

Decision

23. I shall deal first with JG's submissions:

(a) I do not accept that the application has been made maliciously and with the intention of excluding him from participating in his mother's affairs. His mother has assets that need to be managed and she is mentally incapable of managing them herself. In the absence of a Lasting Power of Attorney, someone had to apply to the court for the appointment of a deputy. The application was entirely appropriate and it was made with the assistance of PMB's solicitors.

(b) I do not accept, in the context in which he raised it, that "deputyship encompasses more than just financial matters." His sisters have applied to be appointed as their mother's deputies for property and affairs. They have not applied for permission to be appointed as her deputies for the purpose of making personal welfare decisions which she is incapable of making.

(c) A joint appointment of him and his sisters would be unworkable, and he knows it. Every decision, however minor, would become a bone of contention.

(d) His criticism of the quality of care his youngest sister was providing for their mother at home (even if it was justified) is water under the bridge. Their mother has been living in a nursing home since February this year.

(e) His remarks about the disposal of various items of sentimental value in his mother's home were disingenuous because, as he was aware, his mother had already given him all the old family photographs.

(f) His refusal to accept the applicants' offer to provide him with a copy of their annual report to the Office of the Public Guardian was unreasonable, essentially because he perceived it as a climb-down or a loss of face on his part, rather than as a means of resolving deadlock with speed and certainty.

(g) PMB's estate is modest and not only is it unnecessary, but also it would be disproportionate in terms of costs, to appoint a panel deputy. At the hearing, I suggested to JG that I would possibly consider appointing a panel deputy if he were willing to pay the panel deputy's costs, which I estimated would be roughly £2,000 to £3,000 a year, but he was not prepared to accept the offer.

24. In my judgment, there has been no effective challenge to the applicants' competence or integrity and I am satisfied with their general response to the objections that JG levelled against them.
25. There is no evidence that any hostility between the applicants and JG will impede the proper administration of PMB's estate.
26. There is relatively little for the deputies to do, other than:

(a) claim all the benefits to which their mother is entitled;

(b) receive and manage her income, having resort to capital whenever necessary;

(c) make sure her nursing home bills are paid on time; and

(d) see that provision is made for new clothes and any additional comforts that she may require from time to time.

27. Insofar as one can identify any factors of magnetic importance in this case, they are as follows:

(a) geographical proximity. DG lives locally and visits her mother every Sunday. RS visits about once a month. The evidence is that JG has had very limited contact with his mother since he returned to England three years ago.

(b) the views others who are interested in her welfare as to what is in PMB's best interests. Her other two children, KH in Australia and MG in Devon, both support the application.

(c) PMB's own wishes and feelings as far as they can be ascertained and, in particular, any written statement she made while she still had capacity. PMB clearly has confidence and trust in DG and appointed her to be the sole executrix of her will. While she still had capacity, she also transferred one of her accounts into joint names with DG to facilitate access to her funds, should it be necessary.

28. There are safeguards built into the system, which should allay any concerns that JG has about the court appointing the applicants as deputies:

(a) a joint appointment means that both deputies must act together. This ensures that one of the deputies cannot go on a frolic of her own in terms of contravening her authority or failing to act in PMB's best interests.

(b) they will be required to report annually to the Public Guardian, who has a statutory duty to supervise deputies appointed by the court pursuant to section 58(1)(c) of the Mental Capacity Act 2005. The report is due on the anniversary of the court order appointing the deputies.

(c) they will be required to give security. In this case the level of security will be set at £21,000, which will involve the payment from PMB's estate of a single, one-off premium of £98, rather than having to pay ongoing annual premiums.

29. Having regard to all the circumstances, therefore, I am satisfied that it would be in PMB's best interests to appoint the applicants as her joint deputies, and I dismiss the respondent's objection.
30. I look forward to Michael Overend's submissions regarding the costs of these proceedings.