England and Wales Court of Protection Decisions

		First Avenue House 42-49 High Holborn London WC1V 6NP
		21 September 2015

Senior Judge Lush:

1. This is a reconsideration of a decision made on the papers on 16 February 2015 by District Judge Bellamy, who dismissed the respondents' objections to the applicant's application to be appointed as her mother's deputy for property and affairs.
2. The respondents' application was made under rule 89 of the Court of Protection Rules 2007, which sets out the procedure for reconsideration of court orders made without a hearing or without notice to any person.

The background

3. I shall refer to the person to whom these proceedings relate as Doreen. She was born on 28 August 1937 and used to work for the Potato Marketing Board.
4. For more than thirty years she lived in a council maisonette on the Blackbird Leys estate in Oxford until 2011, when she moved into sheltered accommodation in Littlemore.
5. In May 2013 she was admitted to the John Radcliffe Hospital with severe confusion, disorientation, dehydration and paranoia, and since 16 May 2013 she has been a resident in a care home in Headington.
6. She has Lewy body dementia.
7. The applicant is her daughter, Lori, who was born on 26 March 1959. Lori and her husband emigrated to the United States in 1984. She has two daughters and a son, and seven grandchildren. She lives in Maryland and is a real estate title processor and notary.
8. The respondents are Doreen's:

(a) brother, Douglas, who was born on 2 June 1936 and lives in Shepherds Bush, London W12.

(b) brother, Robin, who was born on 28 July 1946 and lives in Wantage.

(c) niece, Paula, who was born on 26 July 1966, lives in Oxford and is currently unemployed.

9. On 1 July 2013 Lori applied to the Court of Protection to be appointed as Doreen's deputy for property and financial affairs.
10. Doreen's assets are modest and amount to just under £11,000:

Current account	3,178
Cash ISA saver	7,743
	£10,921

11. Her annual income consists of:

State benefits	7,389
Occupational pension	4,477
	£11,866

12. However, her State benefits and occupational pension have been frozen since she became incapacitated in May 2013, and she is owed about £27,000 in accumulated arrears.
13. By the same token, because these payments have been frozen she has been unable to pay her assessed contribution towards her care costs and, as at 31 August 2015, she owed Oxfordshire County Council £23,322.43.

The objections

14. All three respondents opposed the application, though Paula was the most vociferous objector. On 12 March 2014 she made a witness statement, in which she said:

"In May 2013 my father (Robin) and I noticed that Doreen had become increasingly confused and disorientated. We felt it necessary to contact the Emergency Mental Health Team, who advised us that Doreen needed to be admitted to a care home as soon as possible. During this time we made several phone calls and sent emails asking Lori to contact us urgently regarding her mother. It took almost 10 days before she responded. As it had become unsafe to leave Doreen in her own home, my father and I felt that we could no longer wait for Lori and we took the decision to admit Doreen to a place of safety. As we, as family members, found it difficult to contact Lori, I fear that the court and anyone else needing to contact her will also face such difficulties. As Lori resides in the USA, I have great concerns as to whether the court will be able to adequately supervise Lori so as to prevent any abuse of Doreen's finances and ensure that all financial decisions are made in Doreen's best interests.

Over the last few years Doreen and I have become very close and I am the first person she turns to if she has a problem. Over the last 2 years I have taken an active role in helping her to manage her finances. I co-ordinated her move from her council maisonette into a sheltered accommodation flat in May 2011. On behalf of my aunt I liaised with all parties concerned, including Oxford City Council, the removal company, rent/housing benefit department and the setting up of all required service providers with the relevant payment methods. My aunt and I have had many discussions about filing an LPA application or third party access for her bank accounts, but it was something we always 'put off' for another time. It was during these many chats that my aunt and I discussed her savings in an ISA account. She told me that she had been subsidising her daughter's monthly income for many years and because of this she did not want Lori to know about these savings. It has always been my aunt's wish that I take care of her finances should she no longer be able to do so and, as I was effectively doing this, I assured her that I would be happy to do it. Doreen also made sure the rest of the family were aware of this.

At the end of May 2013 Lori arrived in the UK to visit her mother. We arranged to meet to talk about the recent events concerning her mother. I explained that a few weeks previous I had felt it necessary to remove all of Doreen's financial documents, passport, birth certificate, and credit/bank cards from her flat as the flat door was being left unlocked to allow the carers access, as Doreen could no longer manage to operate the locks on the door. We discussed her mother's welfare and I informed Lori that I intended to apply for deputyship, as per her mother's wishes. She seemed happy with this, as she was also aware that this had been her mother's wishes. I am also the holder and executor of her will.

However, when I told her that her mother had £7,700 in an ISA account, her attitude towards me changed and she said she no longer wanted me to apply for the deputyship. This meeting took place at my home on the last day of her visit. The following morning I noticed that Lori had removed Doreen's credit/debit cards, bank statement, passport and birth certificate from my home without my knowledge and took them back to the USA with her. During Lori's visit she removed all valuables from her mother's home and at no time did she make any effort to help pack up and dispose of anything else in the flat. Nor did she help with the terminating of the tenancy, contacting and closing all service provider accounts and handing back the keys, all of which was left to me to deal with.

I was very shocked when Lori told me she no longer wanted me to apply for deputyship and she was going to do it herself. My aunt had never wanted her daughter to have control or knowledge of her money. Her fear was that, as she had been subsidising her income for many years, Lori would spend any money she knew her mother had. I believe that, had I not told Lori about the savings in the ISA account. She would not be applying for the deputyship now. I have concerns that Lori is knowingly acting contrary to her mother's wishes. Lori has never been involved in her mother's finances and therefore could not possibly know what her mother's wishes and needs would be.

For the above reasons I believe that to allow Lori deputyship would not be in her mother's best interest and more importantly against her mother's wishes. Although the wishes of my aunt would be that I would become her deputy, I no longer feel this is a viable option. Nor do I feel that making myself and Lori joint deputies is an option either.

Therefore, I ask the court to appoint the local authority, Oxfordshire County council, deputy to manage Doreen's financial affairs. I believe that they would be best placed to make any decisions with regard to her finances and needs, and will always make these decisions with my aunt's best interest in mind. I will of course be more than happy to be involved in any decisions that may need to be made with regards to her personal care and will of course continue to visit her weekly in the care home."

15. Robin made a witness statement on 17 March 2014 in which he said:

"I have no further evidence of statements to given but firmly believe that my sister's affairs cannot be managed by someone living in the USA and possibly at some point in Jamaica. When my sister was admitted to the care home, the decision had to be taken by my family as her daughter could not be contacted for at least 2 weeks."

16. Lori is married to a Jamaican man and there is a possibility that they may retire to Jamaica in a few years' time. The reason why it was so difficult for Paula and Robin to contact Lori, when Doreen was unexpectedly admitted to hospital in May 2013, is that she and her husband were on vacation at the time.

Court orders

17. On 24 October 2013 District Judge O'Regan made a directions order.
18. On 20 February 2014 District Judge Mort made an order striking out the objections.
19. The respondents applied for reconsideration of District Judge Mort's order and, on 12 June 2014, he set aside the order and drew up a timetable for filing and serving additional evidence and submissions.
20. On 21 August 2014 District Judge Coffey made an order varying the order of 12 June 2014.
21. On 4 November 2014 District Judge Mort made a further order varying the orders of 12 June and 21 August 2014.
22. Finally, on 16 February 2015, District Judge Bellamy made an order once again striking out the objections.
23. None of these orders was made at an attended hearing.

Application for reconsideration

24. On 4 March 2015 Paula sought reconsideration of District Judge Bellamy's order of 16 February 2015 striking out the respondents' objections.
25. On 19 June 2015 I made an order:

(a) requiring a copy of Paula's application notice to be sent to all the parties;

(b) inviting Lori to respond by 31 July;

(c) inviting the respondents to file any further evidence on which they wished to rely by 28 August; and

(d) listing the matter for hearing on Thursday 10 September 2015.

Lori's witness statement

26. On 23 July 2015 Lori made a witness statement in which she said:

"As [the respondents] have proposed that the Oxfordshire County Council be invited to apply for deputyship, the request being on the basis that I reside in the USA, personal feelings, hearsay and guesswork, I do not feel I should compromise my request for deputyship based on my geographical location. I do not feel that location should make a difference. If their concern is that there may be misappropriated handling of my mother's finances I would say that could apply to everyone applying for deputyship, and living not only in England but in any country. It has saddened both me and my mother to read the accusations, speculation and lies that they have written, and I do not see that they have anything to prove that I would not take care of my mother's finances in my mother's best interests. I believe that I am the only one able to manage her request and wishes as she would want them to be handled. I have also had discussions with Oxfordshire County Council regarding the Council being appointed the deputyship and they informed me that they have sent a letter to the Court of Protection on my mother's behalf."

27. In response to Paula's suggestion that Doreen had been 'subsidising' Lori's income, Lori said that:

"Several years ago she provided me with two credit cards, and made me an authorised user on the cards, with the main purpose of the cards to be used to purchase birthday and Christmas gifts for her 3 grandchildren and 7 great grandchildren as it had become increasingly expensive to mail gifts. Over the years she has given me money to help out with different things. … There was no subsidising of my monthly income in any way as Paula states in her objections. The bank statement Paula provided shows purchases of gifts for her grandchildren, but nothing to show a consistent subsidy of money coming to me monthly."

28. Describing a conversation she had with her mother approximately four years ago, Lori said:

"It was at this point that my mother and I had a conversation in which she expressed that she felt like Paula was becoming controlling and making decisions for her. I did offer to call Paula but mum said no as she didn't want any trouble. It was a few weeks after this conversation that my mum and I were taking a cruise and she came to the USA. During her visit we at length discussed the situation with Paula. My mum was not happy. She said that Paula thought it would be a good idea if she went on my mum's bank account in case anything should happen and they even went as far as going to the bank to get the powers of attorney papers. My mum told me that she did not sign them at the bank, as she wanted to think about it. Again she felt like she was being pushed into signing. My mum didn't want to say anything to Paula to start any problems. Once back home it was decided that she was not going to put Paula onto her account and that she was not going to bring it up again. Hence that is why Paula was never made power of attorney,"

29. In her witness statement, Lori referred to various exhibits, one of which was the following letter, dated 25 July 2015, written by the clinical manager of the care home in which Doreen resides. She said:

"Up to this day, Lori has been visiting Doreen at least twice a year and calls the care home 2-3 times a week to speak with her Mum and for further updates. We also communicate with Lori regularly through e-mail. If Doreen needs money for her personal expenses, the home administrator informs Lori and she then deposits the cash in Doreen's account.

Doreen is evidently happier while Lori is visiting for periods of a week at a time. They often go out for the day together and Doreen is always excited when she tells the staff what they have been doing. Sometimes, they decide to stay at the home and spend the time chatting or, when it's not raining, walking in the garden. They have their meals together. It is obvious that Doreen enjoys her daughter's company because, even after Lori has returned to America, Doreen still talks very fondly about Lori's visit.

Since Doreen became more stable and more aware of her condition, she has become increasingly anxious about her finances. Doreen wants to know how much money she has in the bank and I had, on occasions, attempted to obtain Doreen's bank statements from her niece, but without success. However, during Lori's last visit to see her mother, in February this year, they managed for the bank to address any correspondence to Doreen at the home. This has made Doreen much happier.

Doreen is aware of on-going court proceedings but, at times, this is making her frustrated and angry because she just wants the matter to be settled as soon as possible. She has repeatedly spoken to me, and the social worker and geriatrician, regarding her feelings about this and has said, sometimes in as many words, that she "can't understand why they have to fight Lori, I haven't got any money anyway!" and that "Lori is my daughter and, as far as I am concerned, she should look after my affairs."

Rebecca Bunce's witness statement

30. Rebecca Bunce is a debt recovery officer with Oxfordshire County Council. On 28 August 2015 she filed a witness statement, in which she said that:

"I appreciate that I may not understand the full circumstances surrounding this particular case, but Lori has kept me informed of all developments throughout the application process. The council has had no contact from other members of the family and I am very grateful for Lori's contact with me. Her signed declaration on the Financial Circumstances Form is attached marked Exhibit A as well as her signed Agreement for Payment of Assessed Contributions, Exhibit B."

The hearing

31. None of the respondents filed any further evidence or submissions.
32. The hearing took place on Thursday 10 September 2015 and was attended by:

(a) Lori, who was accompanied by her elder daughter; and

(b) Douglas, who was accompanied by his wife.

33. Neither Robin nor his daughter Paula, who had applied for the court to reconsider District Judge Bellamy's order, attended. Douglas explained that Robin currently has to wear an oxygen mask and Paula is almost blind and awaiting an eye surgery.

The law relating to the appointment of a deputy

34. Sections 1 to 4 of the Mental Capacity Act 2005 provide that, if a person (referred to as 'P') 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 P's best interests.
35. 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)).

36. 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.
37. The Court of Protection has a discretion as to whom it appoints and has traditionally 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, out of respect for their relationship, which is now reflected in Article 8 of the European Convention on Human Rights, but there are other, more practical reasons for choosing a family member.
38. 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.
39. Naturally, there are circumstances in which the court wouldn't countenance 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

40. The respondents' principal objection to Lori's appointment as Doreen's deputy is that the court should not appoint anyone as a deputy who is habitually resident outside its jurisdiction; in other words, if they live outside England and Wales.
41. This used to be a commonly held view. The twelfth edition of Heywood & Massey Court of Protection Practice - the last hardback edition before it became a loose-leaf publication - which was published in 1991, stated at page 22 that:

"Normally a person resident out of the jurisdiction will not be appointed. Such a person could be appointed, but inconveniences usually result, especially if the estate is land in England: Re L (March 3, 1902; unreported) – a Scottish case, per Cozens-Hardy L.J. Where such an appointment is asked for, an undertaking in Form No. 7 should be filed."

42. Form No.7 was an "Undertaking by Receiver Resident Outside the Jurisdiction" and stated as follows:

"I, CD of, etc., hereby undertake that in the event of my being appointed receiver in this matter I will duly carry out the terms of the order appointing me and will duly comply with any future order, direction or authority given by the court."

43. In practical terms the policy not to appoint someone resident outside the jurisdiction was linked to another criterion, also cited on page 22 of the twelfth edition of Heywood & Massey:

"Preference will be given to a person whose residence admits of frequent visits to the patient and inspection of his affairs: Re Errington (1821) Jac. 404."

44. It was also linked to the enforceability of the deputy's security bond. If the court calls in a bond, the insurer will subsequently pursue the defaulting deputy (if need be, by bringing proceedings in the County Court) to recover the funds that it has had to pay out.
45. Although I discussed Re Errington briefly in Re M; N v O and P [2013] COLR 91, at paragraph 52, there has been no recent English decision on the appointment of deputies who are resident outside the jurisdiction. I am, however, aware of a Canadian case, Quinn v O'Neill (1992) 47 ETR 18, in the Ontario Court of Justice (General Division), in which Justice John D. Cunningham handed down judgment on 10 August 1992.
46. Justice Cunningham said:

"The Public Trustee, relying on Re Swain (1916), 35 O.L.R. 613 urges that a non-resident ought not to be appointed, particularly where, as in this case, there are next of kin (grandsons) resident in Ontario. Although the Public Trustee concedes Re Swain stands for the proposition only that a committee "ought to be resident within the jurisdiction of the Court" [p. 614], it takes the position that this admonishment has never really been deviated from and ought to continue. I disagree. Re Swain and the cases therein referred to were decided in another era, at a time when communication and indeed travel were difficult and when many of today's technological advances were not even dreamed of. Furthermore, that argument fails, in my view, to consider the requirement of the committee posting a security bond, something clearly contemplated in sections 2(2), 10(d) and 35(3) of the Mental Incompetency Act, RSO 1990, c M.9. Families today have a potential for being more widely spread out geographically and in my view strict adherence to Re Swain overlooks the realities of the 1990s. Such a strict adherence would, in my view, deny many people the opportunity of managing family affairs."

47. I agree entirely. Moreover, in the two decades since Justice Cunningham delivered his judgment there have been further technological advances in communications, such as online banking, digital reporting, mobile phone, email and skype, and cheaper air travel as a result of a proliferation of budget airlines.
48. The old Form 7 undertaking has now been superseded by the Deputy's Declaration (COP4), which Lori signed on 1 July 2013. It contains no fewer than seventeen undertakings. Undertaking 2 states:

"I will act within the scope of the powers conferred on me by the court as set out in the order of appointment and will apply to the court if I feel additional powers are needed."

49. And undertaking 8 states:

"I will comply with any directions of the court or reasonable requests made by the Public Guardian, including requests for reports to be submitted."

50. In my judgment, the fact that someone lives outside the jurisdiction should not be an impediment to their appointment as a deputy if, in all other respects, they are the most suitable candidate to be appointed and their appointment is in P's best interests.
51. Doreen's own wishes and feelings couldn't be clearer. In her letter of 25 July 2015 the clinical manager of the care home in which she resides said.

"Doreen is aware of on-going court proceedings but, at times, this is making her frustrated and angry because she just wants the matter to be settled as soon as possible. She has repeatedly spoken to me, and the social worker and geriatrician, regarding her feelings about this and has said, sometimes in as many words, that she "can't understand why they have to fight Lori, I haven't got any money anyway!" and that "Lori is my daughter and, as far as I am concerned, she should look after my affairs"."

52. It is also obvious that Lori has a good working relationship with the people, who are actually providing Doreen's care or funding that care. For example, the clinical manager of the care home said that:

"Up to this day, Lori has been visiting Doreen at least twice a year and calls the care home 2-3 times a week to speak with her Mum and for further updates. We also communicate with Lori regularly through e-mail. If Doreen needs money for her personal expenses, the home administrator informs Lori and she then deposits the cash in Doreen's account."

53. And Rebecca Bunce, the debt recovery officer with Oxfordshire County Council, said that:

"… Lori has kept me informed of all developments throughout the application process. The council has had no contact from other members of the family and I am very grateful for Lori's contact with me."

54. This is a simple estate to manage. Even after the arrears of State benefits and the occupational pension have been unfrozen and the debt to Oxfordshire County Council has been paid, there will be approximately £12,000 to administer, which is currently held in a current account and cash ISA.
55. I propose to set security at £21,000 for the simple reason that the broker, the Deputy Bond Service, offers this amount of cover for the payment of a one-off premium of £98, which means that there is no need to pay ongoing annual premiums.
56. I understand that the insurance company that provides the security, Aviva, has no problem in bonding deputies who are habitually resident overseas, and that the only difference between a resident deputy and a non-resident deputy is that the Deputy Bond Service is unable to carry out a credit check on non-residents.
57. For these reasons, therefore, I am satisfied that Lori is the most suitable candidate for appointment as Doreen's deputy for property and affairs, and that her appointment is in Doreen's best interests, and I confirm District Judge Bellamy's decision to dismiss the objections.