Before : |
J. A. Clyde-Smith OBE, Esq., Commissioner, and Jurats Blampied and Ronge |
Between |
Her Majesty's Attorney General |
Applicant |
And |
D |
First Respondent |
And |
E |
Second Respondent |
And |
F |
Third Respondent |
IN THE MATTER OF THE APPLICATION OF THE ATTORNEY GENERAL FOR D
AND
IN THE MATTER OF THE CAPFACITY AND SELF-DETERMINATION (JERSEY) LAW 2016
Advocate P. F. Byrne on behalf of the Attorney General
D, E and F appeared personally
Advocate Davida Blackmore as amicus curiae
judgment
the Commissioner:
1. On 5th February 2021, the Court appointed E and his wife F as joint delegates of E's brother, "D", and this after some discussion as to the scope of the appointment.
2. The matter first came before the Court on 20th August 2019, when short reports from two doctors were in conflict as to the capacity of D. The Attorney General was ordered to instruct a suitable expert to carry out an assessment, with reference to the Capacity and Self-Determination (Jersey) Law 2016 ("the 2016 Law"), of D's capacity to make his own decisions in respect of managing his ordinary and extraordinary financial matters.
3. At that hearing, it transpired that E had been appointed executor to the estate of his father, the late G ("the Father") and there were questions as to the extent to which distributions from that estate had been made to D. That estate was in turn due to receive a distribution from the Father's sister, H, ("the Aunt") who died in 2017. Advocate Clare Nicolle is the Executrix of that estate. She was unwilling to pay any monies out of the Aunt's estate until a delegate had been appointed for D. The Aunt's estate of just over £31,000 was to be distributed as to one half to the estate of the Father and as to the remaining one half to D. Advocate Nicolle was directed to disclose to the Attorney General details of the Aunt's estate and the amounts payable to D and the Probate Registry was directed to disclose to the Attorney General the value of any sums payable to D out of the estate of the Father.
4. The matter came back before the Court on 4th November 2019, when the Court heard evidence from Dr Simon Prangnell, who had filed a report dated 25th October 2019. His evidence was succinctly summarised in the unpublished judgment of the Bailiff of 4th November 2019:
"The upshot of Dr Prangnell's report and his evidence is that [D] has a mild learning disability which means that he can manage without difficulty his ordinary weekly budget but would not have capacity to manage more complex financial affairs, such as setting up of standing orders in a bank or managing a larger sum of money than would usually be dealt with on a weekly basis."
5. The two doctors who had previously advised accepted those findings and D, assisted by Patricia Winchester of My Voice Jersey, accepted and did not challenge his conclusion. The Act of Court contained these orders:
(i) That D lacked capacity within the meaning of Article 24(1)(a) of the 2016 Law, and
(ii) That a delegate should be appointed to assist D in managing his extraordinary financial matters.
The matter was adjourned for a delegate to be appointed.
6. Article 24(1) of the 2016 Law is in the following terms:
"General Power of the Court to make declarations and decisions, and to appoint delegates
(1) The Court may make decisions as to -
(a) whether a person ("P" in this Part) has or lacks capacity to make a decision specified in the declarations;
(b) whether P has or lacks capacity to make decisions on such matters as are described in the declarations;
(c) The lawfulness of any act done, or proposed to be done, in relation to P,
and for the purpose of sub-paragraph (c) 'act' includes a course of conduct."
7. The reference in the Act of the 4th November 2019 to Article 24(1)(a) is an error, as the finding of the Court was not in relation to a specific decision. The finding must have been made under Article 24(1)(b), namely that D lacked capacity to make decisions in relation to his "extraordinary financial matters".
8. A whole year went by and on 13th November 2020, the Court sat to hear an application by E to be appointed delegate. The application was accompanied by a note from the Assistant Registrar that was not supportive of his appointment. The Assistant Registrar was concerned that E did not possess the necessary skills required to carry out the role of a delegate, as he appeared to be very reliant on his wife, and there was a particular concern over the inheritance from the estate of the Father. She had met with both D and E and at the meeting, D informed her that the Father had left him £10,000, which he had placed in his savings account, a statement which was not corrected by E. The net value of the estate of the Father was just over £125,000 of which D was due to inherit one third.
9. The Court convened the Attorney General as partie publique and appointed an amicus curiae to assist the Court.
10. The Court sat again on 7th January 2021. Prior to the hearing E and F expressed the wish to Advocate Blackmore that they make a joint application, and the Court was therefore invited to adjourn the matter to allow that application to be made. The Court therefore:
(i) adjourned E's application;
(ii) directed F to file her own application to be a delegate;
(iii) directed Advocate Blackmore as amicus curiae to assist F with the application and to set out the scope of the proposed delegation, and
(iv) directed E, with the assistance of Advocate Blackmore, to file an affidavit providing estate accounts for the estate of the Father.
11. On 27th January 2021, E filed his affidavit, addressing fully the matters required by the Court, but in that affidavit, he revealed that on 11th March 2019, he had transferred the sums standing in the Executor's account with Lloyds Bank (just over £100,000) to an account in the joint names of himself and F with NatWest. He said he had paid £10,000 to D on 16th November 2008, because he was expecting a distribution from the Aunt's estate, and as soon as that was received, he would work out what was payable to D. He said he had always told D that there was more money coming. He had transferred the money into the joint account because the Lloyds account did not have a good interest rate, and he thought it better to move it to an account which had a better interest rate in joint names in case something happened to him. F would be able to look after the account and sort out the payments to D. No payments had been made out of the joint account and it had always been his intention to distribute the Father's estate once money was received from the Aunt's estate. He said he had always looked after D and would continue to do so to the best of his ability and the same was true of F.
12. The matter came back before the Court finally in 5th February 2021. On this occasion, the Assistant Registrar was more comfortable with the appointment of E and F as joint delegates. They had attended the Probate and Protection Division to discuss their joint application and to be informed of the principles of the 2016 Law and the role and responsibility of a delegate. They were informed that the 2016 Law was the law that dealt with the appointment of delegates, of the five core principles that underpinned the 2016 Law and the way they affect how the 2016 Law is used in practice, the test for capacity and how decisions should be made on behalf of an individual who lacks capacity, the reporting requirements under the 2016 Law and the need for delegates to maintain records of decisions made and income/expenses to assist them in this regard. There is now clarity in relation to the two estates, something that the Assistant Registrar would monitor, and she raised the possibility of the delegates being supervised by the Viscount in the performance of their functions, pursuant to Article 14 of the Capacity and Self-Determination (Supervision of Delegates etc.) (Jersey) Regulations 2018.
13. The Court was satisfied that the transfer of the estate monies into the joint names of E and F was an honest mistake. They accepted, as directed by the Court, that the same should be transferred back into the estate account on maturity, thereafter to be kept separate from E's personal property and separately identifiable until such time as the Father's estate was duly distributed.
14. E and F had been assisting D with his financial affairs for years in a close and clearly loving family arrangement that had worked well. D spoke movingly about how loyal his brother had been to him over many years and how he wanted both his brother and F to assist in the managing of his financial affairs. Those affairs consisted of a current account with approximately £15,000, a reserve account with approximately £116,000, a one-year fixed deposit with approximately £80,000 and monthly Social Security and work pension receipts. D was also due to inherit approximately £16,000 from the Aunt's estate and approximately £47,000 from the Father's estate.
15. The alternative to the appointment of E and F was to appoint a professional delegate, as no other lay candidates had been put forward, who would have to be imposed upon D against his express wishes, and whose costs would be disproportionate to the relatively limited sums involved. The Court was satisfied that in the context of this close family it was appropriate to appoint E and F as joint delegates.
16. The Court gave consideration to the appointment of the Viscount to supervise the delegates, but it was clear that the Judicial Greffier would be monitoring this delegation. To assist in that process, the Court directed:
(i) E to transfer the estate monies held in a fixed bank account in the names of E and F back to the estate account with Lloyds Bank within seven days of the fixed account's maturity date.
(ii) E to furnish the Judicial Greffier with a copy of the estate accounts once the administration of the estate was complete, and in any event within three months, and
(iii) Both delegates to attend upon the Judicial Greffier annually with their Annual Report and Plans at a time to be agreed in order for the Judicial Greffier to review with them the conduct of the delegation.
The possibility of appointing the Viscount to supervise could be kept under review.
17. As to the scope of the delegation, Article 24(1) of the 2016 Law empowers the Court to make declarations as to the capacity of a person to make a single specified decision or multiple decisions on such matters as are described. Under Article 24(2) the Court can then appoint a delegate to make those decisions on the person's behalf, always having regard to Articles 3 - 6 which set out the principles to be applied (Article 3), what is meant by lack of capacity (Article 4), what is meant by the inability to make a decision (Article 5) and the best interests of the person lacking capacity (Article 6). Under Article 24(3) the Court must ensure when appointing a delegate that the scope and duration of the appointment are no greater than reasonably necessary having regard to all the circumstances.
18. There were two issues with the framing of the Act of the 4th November 2019. Firstly, under Article 3(1) of the 2016 Law, a person is assumed to have capacity unless it is shown otherwise. There is no provision in the law for a person who is assumed to have capacity to be provided with the assistance of a delegate. If the person is shown to lack capacity to make decisions, then a delegate is appointed to make those decisions, not to assist a person who lacks capacity in the making of those decisions.
19. Secondly, the imprecise term "extraordinary financial affairs" had not been defined by the Court, and it was necessary for it to be defined, not just for D and the proposed delegates, but also for the bank and any third party dealing with D's assets, so that there was clarity as to what decisions D could or could not make. The bank, in particular, would be provided with a copy of the Act of Court from which the position needed to be clear.
20. On the 4th November 2019 the Court had found that D had the capacity to make decisions about his weekly expenditure, which he did through his debit card on his current account, but not beyond that. Consideration was given to the current account remaining under his control, but this was not practical, as important standing orders, such as the payment of his rental, were made from the current account, so the delegates needed to be in control of it.
21. After discussion the solution arrived at was for the Court to interpret the finding of the Court on the 4th November 2019 as a declaration that D lacked capacity to make decisions in respect of all of his property and affairs (including his bank accounts, pensions and benefits, any other form of investment and any funds inherited), save to the extent of a new current account that the delegates would open in his name and upon which he could continue to draw up to £200 per week (or such other sum as may be determined by the delegates from time to time) by way of debit card or otherwise. The delegates would ensure that the new current account would be topped up on a regular basis to enable this. The Act of Court specified that D retained capacity to make decisions in relation to that new current account.
22. E and F were appointed joint delegates on that basis.
Authorities
Capacity and Self-Determination (Jersey) Law 2016.
Capacity and Self-Determination (Supervision of Delegates etc.) (Jersey) Regulations 2018