England and Wales Court of Protection Decisions

Neutral Citation Number: [2015] EWCOP 57

Case No: 12642926

COURT OF PROTECTION

MENTAL CAPACITY ACT 2005

First Avenue House

42-49 High Holborn

London WC1V 6NP

Date: 2 September 2015

Before:

SENIOR JUDGE LUSH

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Re PAW

 

Between:

 

	(1)    ARW (2)    SJ (3)    BQ	Applicants
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	IW	Respondent

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The Applicants and Respondent in person

 

Hearing date: 18 August 2015

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JUDGMENT

 

 

 

 

 

 

 

Senior Judge Lush:

 

1.      This is a contested application for the appointment of a deputy for property and affairs.

 

 

The family background

 

2.      All the parties to these proceedings live in Middlesex.

 

3.      PAW was born on 28 May 1943 and resides in a nursing home in West Drayton.

 

4.      She has Alzheimer’s dementia, which was first formally diagnosed on 4 June 2010. Because of a significant impairment in the functioning of her mind or brain, she is unable to make decisions relating to her property and financial affairs. Her GP, Dr Rajany Sivanathan of The Warren Practice, Hayes, assessed her on 3 April 2013, and she scored only one out of a possible thirty points in a Mini Mental State Examination.

 

5.      Her husband, ARW, is the first applicant. He was born on 11 October 1936, was formerly a pharmacist. He lives in Hayes. He, too, has been diagnosed as having dementia of the Alzheimer’s type.

 

6.      They have two sons:

 

(a)    IW, who is the respondent. He was born on 22 April 1965 and lives in Ruislip. He was the managing director of a company which went into liquidation earlier this year and he is currently in the process of setting up another company.

 

(b)   PW, who was born on 22 July 1967 and lives in Singapore. He is the regional general manager of a well-known hotel chain.

 

7.      The second and third applicants are a sister and brother who are PAW’s first cousins once removed. Although the relationship sounds remote, they have always been a close-knit family:

 

(a)    SJ was born on 29 September 1952 and lives in Ashford. She worked in the accounts department of DHL Couriers for many years, and subsequently worked for IW’s company, but has now retired.

 

(b)   BQ was born on 1 February 1956, lives in Isleworth, and is a football coach.

 

8.      On 26 February 2015 (although the application form was dated 1 July 2014) ARW applied to the court for an order appointing him and SJ and BQ jointly to be his wife’s deputies for property and financial affairs.

 

9.      PAW’s assets consist of:

 

(a)    a half share of the family home in Hayes. The house is currently worth about £450,000;

(b)   a half share of a joint loan of £170,000 that she and her husband made to IW to set up the company that recently went bust; and

(c)    investments with Brooks McDonald Asset Management worth approximately £140,000.

 

 

The objection

 

10.  On 7 May 2015 IW completed an acknowledgment of service, in which he objected to the application and proposed the following order instead:

 

(a)    I as eldest son and most involved relative wish to be one of two deputies.

(b)   My brother has lived abroad for fifteen years and I have no objection to BQ as a trusted family member being second deputy in his stead.

(c)    My father and mother should, where possible, be involved with all decisions about their lives.

(d)   My father cannot remember continuity of facts and should not be the primary decision maker.

 

11.  He added:

 

“I would like this application to be struck out as it is just wrong in so many ways. I have included 8 witness statements: 4 from myself; 1 from my wife; 2 from employees re investigation; 1 pair of letters.”

 

12.  He also said: “I believe SJ is unsuitable in any capacity where the family’s welfare is concerned.”

 

 

Order

 

13.  On 10 June 2015 I made an order listing the application for an attended hearing on 18 August 2015 and requiring:

 

(a)    an officer of the court to send a copy of the respondent’s acknowledgement of service to each of the applicants immediately;

(b)   the respondent, if he wished to rely on them, to send copies of the eight witness statements he had submitted to the applicants immediately;

(c)    the applicants to file any witness statements in response to the objection by 10 July; and

(d)   the respondent, IW, to file any further evidence by 31 July.

 

 

PW’s witness statement

14.  On 4 July 2015, PAW’s younger son, PW, made a witness statement, in which he said as follows:

 

“I disagree with my brother’s objection and request the court to honour my father’s initial recommended deputies, BQ and SJ.

 

BQ and SJ have known my parents for almost their entire lives. Their mother was my mother’s cousin and best friend. SJ was a bridesmaid at my parents’ wedding (BQ was there too). Together they are the named executors of my parents’ wills and were assigned power of attorney by my father. They were always my closest relatives growing up and were completely trusted by my parents and myself. This is why they were recommended as deputies by my father.

 

I am a successful hotelier and have worked for [a leading company in the hotel industry] my entire 28 year career. I left the UK in 1999 and have worked in the USA, the Caribbean and Malaysia. I currently reside in Singapore, where I am regional general manager responsible for seven properties. My parents used to travel to visit myself and my family but, due to their failing health, these visits stopped five years ago. Since then I have visited them twice annually and phone weekly. Unfortunately, due to living abroad, there has been a limit as to what assistance I have been able to offer. I rely on my brother and friends and family to keep me appraised of my parents’ condition.

 

In 2013 my mother’s mental health deteriorated and my father was no longer able to provide adequate care. He decided that she needed to be admitted to a care home. We discussed power of attorney (POA) and at this time my father advised me that, due to me living so far away, it was impractical for me to grant POA or be a deputy for the Court of Protection. I agreed with his decision.

 

My father also advised me that my brother, IW, would not be a deputy or POA. We have always been treated the same by our parents and he could not select one and not the other.

 

Also he recognised that myself and my brother were very different and there would be disagreements on decisions that would negatively impact the family. For this reason he selected BQ and SJ to make impartial, unbiased decisions on behalf of himself and also my mother. I agreed with his decision.

 

My brother and I are very different and do not get along due to our differences. Our communication over the past ten years has been minimal. We only speak to discuss my parents. However, it is extremely difficult to have a sensible conversation with my brother without him becoming very angry.

 

Living close to my parents, he has regularly visited my parents, though he does not keep me adequately informed of their medical condition or status due to our strained relations.

 

My brother for the past twenty years has run his own company with money initially loaned by my parents. Earlier this year this company went into voluntary liquidation with significant debt. This includes money loaned and gifted from my parents. My father advised me that this loan was yet to be repaid. This money potentially can be used to pay for care needed for my mother and father. For the reasons given, my brother should not be named a deputy by the court.

 

My brother objects to SJ being appointed a deputy due to a personal disagreement between them. … This is a personal matter between them and has nothing to do with my mother or father’s affairs. Despite their poor relations, I still believe SJ, as well as BQ, are best placed to make unbiased, sensible decisions regarding my mother’s property, financial and welfare matters.

 

Regarding my father, ARW, regrettably since submitting the request to the court his own health has deteriorated significantly. My father was diagnosed with Alzheimer’s in Autumn 2014, though my brother did not inform me until April 2015. Due to his deteriorating health, I do not object to my father not being appointed a deputy by the court.

 

With BQ and SJ already having POA over my father’s affairs, I strongly recommend that the court also appoint them as deputies for my mother, as per my father’s initial request. My parents’ well-being is my only concern.”

 

 

SJ’s witness statement

15.  On 15 July 2015, five days after she was supposed to file her response, SJ made a witness statement in which she said, among other things, that:

 

“IW has a financial conflict with his parents as managing director of a company that has recently gone into liquidation and owing thousands of pounds of personal loans to his parents. A copy of the statement was included in the original application.

 

I do not consider him to have the business acumen to be able to hold accurate accounts for the court to examine periodically.

 

My brother and I were asked by both PAW and ARW if we would act on their behalf and look after their finances in the event they were not able to do it themselves.”

 

 

The hearing

  

16.  The hearing took place on Tuesday 18 August and was attended by all four parties and Anthony Stamp, who had been named in the deputy’s declaration (COP4) forms completed by ARW and SJ as someone whom they would wish the court to consider appointing as a deputy if they were not appointed themselves or if they became unable to take up the appointment. None of the parties was legally represented.

 

17.  IW turned up fifteen minutes late with a box of witness statements he wished to file there and then. He said that he had contacted the Court Enquiry Service on 29 July 2015 and had requested a three-week extension of the time in which to file any further evidence. He said that James, the person who took his call, had told him that:

 

(a)    he did not need to send the original application notice (COP9), a copy would suffice;

(b)   he did not need to wait for a reply from the court;

(c)    he could assume that the extension had been granted by the court; and

(d)   he did not need to advise the other parties.

 

18.  I cannot imagine that any member of the Court Enquiry Service would have given such erroneous and irresponsible advice, especially if they were aware that the hearing was listed for 18 August, and I refused to admit IW’s further evidence.

 

19.  IW also stated that his brother had done a ‘U turn’ and had changed his mind about IW’s application. There was no evidence to substantiate this and, given the long-standing views expressed by PW in his witness statement of 4 July 2015, I simply didn’t believe it.

 

 

The law relating to the appointment of a deputy

 

20.  Sections 1 to 4 of the Mental Capacity Act 2005 provide that, if a person (who is referred to as ‘P’ in the Act) lacks capacity to make a particular decision at a particular time, then any act done or any decision made by someone else on his behalf must be done or made in his best interests.

 

21.  There is a checklist in section 4 of the Act which requires any substitute decision-maker, including the court, to “consider all the relevant circumstances” when deciding what is in P’s best interests and, in particular, they must take the following steps:

 

(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 his ability to participate, as fully as possible in any act done for him and any decision affecting him (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 him when he 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 he 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 he 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 his welfare, as to what would be in his best interests and, in particular, as to the matters mentioned in section 4(6): (s. 4(7)).

 

22.  Section 16(2) of the Act provides that the Court of Protection may make any decision on P’s behalf itself, or it may appoint a deputy to make decisions on P’s behalf.

 

23.  The Court of Protection has a discretion as to whom it appoints and has generally preferred to appoint a relative or friend as deputy (as long as it is satisfied that it is in P’s best interests to do so), rather than a complete stranger.

 

24.  The main reason for preferring family members to strangers, as a starting point, has been respect for their relationship, which is now reflected in Article 8 of the European Convention on Human Rights, but there are other, practical reasons for choosing a family member.

 

25.  A relative will usually be familiar with P’s affairs, and aware of their wishes and feelings. Someone with a close personal knowledge of P is also likely to be in a better position to meet the obligation of a deputy to consult with P, and to permit and encourage them to participate, or to improve their ability to participate, as fully as possible in any act or decision affecting them.

 

26.  There are, of course, circumstances in which the court would never dream of appointing a family member as deputy; for example, where:

 

(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 an actual conflict of interests, rather than simply a potential conflict;

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

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

(f)    there is a need to ensure that P is free from undue influence, particularly the influence exerted by the person who is seeking to be appointed as deputy.

 

 

Decision

 

27.  I have decided not to appoint PAW’s husband, ARW, as a deputy because he has his own health issues and would probably prefer to be relieved of the worry. He is, of course, someone whom the deputies will consult, pursuant to section 4(7), when making decisions as to what is in PAW’s best interests.

 

28.  I do not intend to appoint IW as his mother’s deputy or one of them because he is his parents’ principal debtor. They may need to realise the funds that he owes them in order to provide for their care in later life. The actual conflict between his interests and theirs is too great to enable him to secure their interests and position in a satisfactory manner.

 

29.  It is clear that the rest of PAW’s family regard IW as totally unsuitable to be her deputy because he lacks competence and integrity and because he has a poor track record of managing his company’s financial affairs. Section 4(7)(b) of the Act requires me to take into account the views of anyone interested in PAW’s welfare as to what would be in her best interests, and I have done so.

 

30.  I shall appoint SJ and BQ to be joint deputies for the following reasons:

 

(a)    They are suitable relatives who are able and willing to act.

 

(b)   They live locally and are able to visit PAW regularly and attend to her needs.

 

(c)    PAW appointed them to be the executors of her will. Section 4(6) of the Act requires me to take into account any relevant written statement made by PAW when she had capacity. As I have said on many other occasions, a will is a highly relevant written statement, and PAW’s appointment of SJ and BQ as her executors suggests that she trusted them to deal with her financial affairs after her death, and that she thought they would be business-like and capable of coping with the paperwork.

 

(d)   ARW appointed SJ and BQ to be his attorneys under a Lasting Power of Attorney for property and financial affairs, and he clearly trusts them, too. He also proposed them as deputies for his wife.

 

(e)    PW considers that the appointment of SJ and BQ would be in his mother’s best interests. I was particularly impressed by his witness statement, and that is why I quoted most of it in paragraph 14 above. It seems to give an articulate and balanced account of the family’s history and current circumstances, whereas IW’s four witness statements, which were admissible, were rambling, hysterical and vindictive.