Jersey Unreported Judgments

[2011]JRC137

Royal Court

(Samedi)

15 July 2011

IN THE MATTER OF THE PROPOSED CURATORSHIP OF K

H. Sharp, Q.C., HM Solicitor General.

B in person.

judgment

the bailiff:

1.        The background to this matter is to be found in the judgment of the Court issued on 27^th April, [2011] JRC 090.  K is aged 84.  The Attorney General has applied for the appointment of a curator on the basis that she is incapable of managing her own affairs.  B is K's son.  He argues that she is capable of managing her own affairs and that there is no need for a curator.  If the Court is against him on that, he argues that, if a curator is necessary, he should be appointed.  The Solicitor General, on the other hand, argues that an independent solicitor, E should be appointed. 

2.        On 12^th April, the Court decided that, in the light of the medical evidence, K was indeed incapable of managing her own affairs and the appointment of a curator was necessary.  The reasons for that decision are to be found in the judgment referred to in the preceding paragraph. 

3.        The Court sat on 16^th June to consider who should be appointed as curator.  At the conclusion of the hearing, the Court ruled that E should be appointed and he was duly sworn in as curator.  We now give our reasons for that decision. 

The Evidence

4.        In Picot-v-AG [2008] JLR 69 the Court of Appeal held that the parties to an application for the appointment of curator are the Attorney General and the interdict.  A person such as B is summoned as a witness to assist in the process but he is not a party to the proceedings.  He therefore has no right to call his own evidence or to cross examine witnesses called by the Attorney General or to appeal against the Court's decision. 

5.        Nevertheless, on this occasion the Court decided in its discretion to allow B to ask questions of the witnesses called by the Solicitor General notwithstanding that he had no entitlement to do so. 

6.        The Court heard evidence from a number of witnesses.  For the most part, their statements or affidavits were confirmed by them as their evidence in chief and they were then questioned by B.  The evidence and cross examination went into some detail on a number of matters which are not necessary for our decision.  We propose therefore to confine our summary of the evidence to those aspects which we consider relevant. 

7.        Miss Kirsty Lelliott is a staff nurse employed on Portelet Ward.  She recalls that, when K was admitted as a patient in 2009, she approached B and explained the extent of his mother's care needs and that residential care could be an option.  B's reaction to the suggestion of residential care was described by Miss Lelliott as being abrupt and dismissive.  She said that he then sat down with his mother and she overheard him trying to discourage his mother from going into residential care as it would be too expensive. 

8.        D is married to K's niece.  His evidence and the cross examination by B covered a wide area and it is clear that there is some tension between them.  In our assessment the relevant evidence from D is as follows:-

(i)        He said that, prior to the incident towards the end of 2010, when K was found wandering in St Helier in a confused state, he had told B that his mother might need help, to which B's response was very dismissive.  B apparently said on more than one occasion that K should never have sold her old house in Queen's Road.  The result of that sale had been that B had had to stop living with his mother and find his own accommodation. 

(ii)       D said that on another occasion, B had expressed his concern that the Parish would get its hands on his mother's present house if she went into a care home.  B made it clear that he did not think his mother should go into a care home and mentioned the cost of such a move a few times. 

(iii)      On the day of the wandering incident, D had been on duty and had noted from the incident log that an elderly lady had been found in a confused state.  He became aware that it was K and decided to go down in person in order to assist.  In due course he persuaded her to go home.  He said that, when they arrived at her home, B was somewhat intimidating and said in front of K that she was being stupid and that he had told her not to go out.  He referred again to the fact that if she went into care, it would mean losing the house.  When asked if he was going to call her doctor, B reacted angrily saying that she did not need a doctor and it was none of D's business.  He also made an observation about the doctor being a liar and that he was making a complaint about the doctor's actions. 

9.        In cross examination B disputed much of what D said although he accepted that he had said that it had been unwise of his mother to sell her house in Queen's Road. 

10.      PC Louise Bree told how, on 23^rd October, 2010, she was called to attend at K's home.  The police had been called by B because K's sister was trying to get into the house and B was not allowing her to do so.  According to PC Bree, B was aggressive in his manner towards her and became angry when the officer tried to speak directly to K in order to hear her thoughts as opposed to those of B.  She said B continually answered the questions which she posed to his mother and spoke over his mother when she tried to talk.  He would make a statement to say what he wanted K to say.  He would then finish it off by saying to K "that's right isn't it", to which K would agree.  At one stage the officer pointed out to B that he was contradicting what K had already said.  He then turned on his mother shouting at her that she was making him look like a fool.  The officer became very concerned at the way that B appeared to be controlling his mother and at the fact that he was denying her access to her sister.  In cross examination B said that he did not intend to be aggressive and apologised if he had been.  He said that it may have been that he was impatient to get home that night.  He felt that the officer was ignoring him and only wanted to talk to his mother. 

11.      Claire Cook is a senior psychiatric social worker employed by the Health and Social Services Department.  In the early part of 2010 she had been responsible for discharge planning for K, who was on Samarès Ward.  She said that the professionals were having difficulty in engaging with B.  He had apparently refused to give them his contact details making it impossible for them to contact him, he had not attended discharge planning meetings and he had been verbally abusive and hostile to some of the social workers and occupational therapists when they tried to undertake home visits.  On 10^th May, 2010, Miss Cook had met B at Samarès Ward.  He said that he and his relatives would resist any attempt to place his mother in a care home.  Miss Cook offered to take B to view Ronceray Care Home, which she was proposing as a suitable place for residential care, but B refused to accept this offer.  He complained to Miss Cook that when K had sold her house in Queen's Road, she had made him leave home.  In October 2010, after K had been taken home by her relatives, Miss Cook visited her.  K let Miss Cook and her colleague Andrew Le Feuvre in and was very chatty.  After a few minutes B arrived and was very annoyed at his mother for letting them in.  B said that he and his brother had tape recorded Dr Wilson's visit the previous week and had sent a copy of that tape to the News of the World.  B also said that he had unplugged the telephone at K's home in order to stop unwanted phone calls from family members.  When asked what would happen if she needed the phone in an emergency, B said that he had told her to plug it in again.  Miss Cook doubted K's ability to do that. 

12.      Andrew Le Feuvre confirmed that he had been present on both the occasions referred to in Miss Cook's evidence and he corroborated her evidence.  In cross examination it was put by B that what he had said was that he plugged in the telephone every night before he left.  But Mr Le Feuvre maintained that B had not said this but had merely said that, in the event of an emergency, his mother could plug the phone back in. 

13.      In his evidence, B said that he was perfectly capable of acting as his mother's curator.  He accepted that there was some tension between himself and Mr and Mrs D.  He said that he had not in fact tape recorded Dr Wilson when she visited the house and he had lied to Claire Cook and Mr Le Feuvre when he had told them that he had recorded the doctor.  He denied shouting at his mother as alleged although he did say that he may have raised his voice.  He said he had unplugged his mother's phone because it was continuously ringing but he put it back on when he left.  He said that he was very busy and had not had time to read all the documents supplied by the Solicitor General.  He said that he did not have any objection to selling the house if it became necessary. 

14.      Finally, the Court heard from K's sister.  She said that if K were to be released home, she would assist in looking after her.  She admitted that she had trouble with her own eyesight and that on a couple of occasions B had refused to let her in.  On one occasion she then telephoned K who had said that B did not want to let anyone in. 

Discussion

15.      B submitted that his mother would not be happy with a stranger as curator and she might get upset and not co-operate.  He said he had been looking after her affairs since 1986, although he was unable to tell us exactly what her assets were.  He felt particularly strongly that he had been unfairly portrayed in some of the evidence.  In short he felt that his mother would benefit if he were the curator rather than some stranger. 

16.      We have considered carefully B's submissions but we are in no doubt that the right course is to appoint an independent curator, essentially for the reasons put forward by the Solicitor General.  In summary:-

(i)        B is unable or unwilling to recognise the seriousness of his mother's condition.  He opposed the application for the appointment of curator and still believes that she should come home to be looked after at home.  We are satisfied from the medical evidence that this is not a practical proposition. 

(ii)       There is a concern that B may not wish to pay for his mother's necessary care because he fears that it will result in the sale of her house, which he, together with other siblings, would otherwise stand to inherit.  We are satisfied that he has mentioned this on previous occasions as set out in the evidence. 

(iii)      We are satisfied that on a number of occasions B has come across as being intimidating and domineering and that there is concern over the extent to which he would control his mother. 

(iv)      We are satisfied that B would find it very difficult to work with the medical professionals and this would pose difficulties in relation to the curatorship.  To take but one example, he lied by saying that he had secretly taped Dr Wilson and had supplied the story to the News of the World.  It seemed to us important in K's interests that her curator should be able to work sensibly with the medical professionals, who would be advising on the level of care which she requires. 

(v)       We do not need to make a finding on every single incident referred to in the evidence but broadly speaking we accept the evidence of Miss Lelliott, Mr D, PC Bree, Claire Cook and Mr Le Feuvre that we have summarised above. 

(vi)      B said that he had been too busy to read all the papers before the hearing despite the importance to him.  This did not give us confidence that he would undertake all the necessary work involved in acting as curator for his mother. 

17.      For these reasons the Court concluded that it would not be appropriate to appoint B as curator and that an independent curator should be appointed.  The Attorney General had nominated E and the Court accordingly duly swore him in. 

Authorities

In the matter of K [2011] JRC 090.

Picot-v-AG [2008] JLR 69.