H, Re [2015] EWCOP 52

IMPORTANT NOTICE

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No 1261657T

[2015] EWCOP 52

COURT OF PROTECTION

Date 5 August 2015

MENTAL CAPACITY ACT 2005

First Avenue House

42-49 High Holborn

London WC1V 6NP

Before

SENIOR JUDGE LUSH

IN THE MATTER OF H,

ON THE APPLICATION OF F AND M

Hearing Hearing date: 14 July 2015

John Friel, instructed by SEN Legal, for the applicants

JUDGMENT

Senior Judge Lush:

[1]There are two provisions in the Mental Capacity Act 2005 (‘MCA’) that seem to contradict each other. Section 16(4)(b) envisages that a deputyship appointment will be of limited duration, whereas section 19(5) facilitates an appointment that could last for decades.

[2]Section 16(4) states that:

“When deciding whether it is in P’s best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that - (a) a decision by the court is to be preferred to the appointment of a deputy to make a decision, and (b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.” (a) a decision by the court is to be preferred to the appointment of a deputy to make a decision, and (b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.”

[3]Section 19(5), on the other hand, says that:

“When appointing a deputy or deputies, the court may at the same time appoint one or more persons to succeed the existing deputy or those deputies – (a) in such circumstances, or on the happening of such events, as may be specified by the court; (b) for such period as may be so specified.” (a) in such circumstances, or on the happening of such events, as may be specified by the court; (b) for such period as may be so specified.”

[4]When it comes to the crunch, section 16(4)(b) trumps section 19(5) because it is a principle to which the court must have regard when deciding whether it in P’s best interests to appoint a deputy, while section 19(5) is simply a discretion conferred upon the court, once it has decided to appoint a deputy.

[5]Section 16(4) is also more clearly compliant than section 19(5) with international human rights law. For example, the United Nations Convention on the Rights of Persons with Disabilities (‘UNCRPD’), which the United Kingdom ratified on 7 August 2009, stipulates in article 12.4 that:

“States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.” rights and interests.”

[6]In practice, apart from when it makes an interim appointment, the court rarely imposes a time limit on a deputy’s tenure. The average length of a property and affairs deputyship is three years and nine months. This is because the court’s clientele contains a preponderance of older people with age-related impairments of the mind or brain. To impose a time limit of, say, a year or even two years in these cases would not only be jobsworth but would also create a tsunami of customer complaints. When the MCA came into force in October 2007, the judges of the court made a conscious decision to apply section 16(4)(b) and to limit the duration of deputyship appointments to three years in all cases where P was a younger person who had been awarded damages for personal injury or clinical negligence. However, the bureaucratic constraints of having to make repeated applications and orders to renew the appointment from 2010 onwards were onerous, both for the deputies and the court, and even these appointments are now usually made without restriction and until further order. The requirement in Article 12.4 of the UNCRPD for “regular review by a competent, independent and impartial authority” is largely met by the Public Guardian’s functions in supervising deputies, receiving reports from them, and directing visits by a Court of Protection Visitor.

[7]Although the ability to appoint successive deputies is enshrined in statute, the court very rarely receives applications of this kind. This is mainly because, in cases involving older people, the effect of successiveness can be achieved more easily and effectively by means of a joint and several appointment of, say, P’s spouse and their children. Another reason why these applications are scarce is that neither the Court of Protection nor the Office of the Public Guardian has ever actively promoted successive appointments for reasons that will become obvious later in this judgment.

[8]This is an application to appoint successive deputies for a young woman aged 26. Potentially, the appointment could last for more than forty years. Despite what the law says about measures applying for the shortest time possible, I have decided to allow the application and shall explain the reasons why.

Summary of the facts

[9]H was born on 21 December 1988.

[10]She is an only child and lives in Cambridge with:(a) her father, F, who was born on 18 April 1961 and is a furniture maker; and

(b) her mother, M, who was born on 16 January 1964 and is a hairdresser.

[11]Her birth was a month premature following placental abruption and an emergency caesarean section. She was stillborn and didn’t start breathing until fifteen minutes after delivery. She spent the first seven weeks of her life in a special baby care unit.

[12]She was formally diagnosed as autistic when she was 5 and has cognitive functioning and adaptive skills in the extremely low range. In addition, she has almost unintelligible speech and very limited communication skills.

[13]On 6 August 2014 her parents applied to be appointed jointly and severally as her deputies for property and affairs and personal welfare. They also applied for the appointment of three successive deputies - A, B and C - in the event that they could no longer act themselves. All three proposed successive deputies are female and live in Cambridgeshire and know H extremely well.

[14]A and B are H’s twin maternal aunts. They are ten years younger than her mother and are currently aged 41. The average life expectancy for a female born in Cambridgeshire is 84.6 years; the second highest in the United Kingdom.

[15]A separated from her husband two years ago and has moved house several times since. H has been to visit her in all these houses and, frankly, has struggled with seeing her in changing settings.

[16]B sees H every Wednesday, when she is paid to support her. She and her husband often go on holiday with H and her parents. B doesn’t normally have H alone at her house but H does visit with her parents.

[17]C is 44 and got to know H at college several years ago. She is now paid to work with her one day a week and occasionally takes H to her own home.

[18]Because they were seeking a personal welfare order, the applicants were required to apply for permission and in the permission form (COP2), in response to the question “how would the order … benefit the person to whom the application relates?” they said:

“It would enable decisions to be made for H by those who know her best, who can take account of her expressed wishes and feelings and make nuanced decisions for her at speed, without the necessity of repeated applications to the court. This is the least restrictive approach to protecting H.”

[19]On 6 January 2015 I made an order on the papers granting the applicants permission to make the personal welfare application, but refusing to let them apply for the successive appointment of deputies. My reason for not allowing the successive appointment was this:

“It seems inappropriate to make provision for a young adult so far in advance in respect of events that may not occur for many decades, and it would be in H’s best interests for the court to defer appointing any successor deputies to make decisions on her behalf until after the death of one of her parents.”

[20]SEN Legal of 3-4 Forbes Business Centre, Kempson Way, Bury St Edmunds, Suffolk IP32 7AR act for H’s parents and on 29 January 2015 they filed an application notice seeking a reconsideration of the order pursuant to rule 89 of the Court of Protection Rules 2007.

[21]On 18 February, 19 March, and 1 June 2015 I made further orders:(a) setting out a timetable for the filing of evidence and submissions;

(b) requiring the applicants to set out their proposed wording for the appointment of the successive deputies; and

[22]I also asked the Public Guardian to prepare a report under section 49 of the MCA considering the appointment of successive deputies both generally and specifically in H’s case. The Public Guardian is responsible for supervising deputies appointed by the court (MCA, s. 58(1)(c)), and the preparation of this report gave him the opportunity to make his own representations on the appointment of successive deputies generally and in this particular case.

[23]On 28 May 2015 the applicants filed an application notice seeking a direction that they be appointed as deputies for property and affairs and personal welfare on an interim basis pending the hearing. Their application was dealt with immediately and the appointments were made on 1 June 2015.

The proposed wording of the successive appointment

[24]John Friel, of Hardwicke Building, Lincoln’s Inn, is the applicants’ counsel. He drafted the following clause for the appointment of the successive deputies:

“In the event that either or both of [H’s parents] are no longer able to make decisions as H’s deputy, or in the event of both of them predeceasing H, then the following shall be appointed: (1) In order of priority to act as successor deputy replacing the incapacitated or deceased current deputies as listed hereafter, A B and C. (2) One or more of the above listed successor deputies will replace the incapacitated or deceased current deputies, each or both of them, upon the following:- (a) In the event of each or both of the deputies, namely [H’s parents] dying, upon production of the death certificate by the surviving deputy, with an accompanying letter to this court, sent within 28 days. (b) In the event of one or both of the current deputies becoming incapacitated, due notice shall be given either by the deputy who is incapacitated, each or both of them providing written confirmation that they no longer are able or wish to act as a deputy, or alternatively on production of evidence in writing that he or she are either or both incapacitated from the duty of deputy, or a report from a general practitioner or medical consultant. Such medical evidence or due notice to be produced to this court as soon as practical by way of a covering letter. (c) In the event of any of the above listed successor deputies becoming either incapacitated or dying, the last named successor deputy shall be appointed by the same method as set out above. (3) The authority of the deputies appointed as successors shall be in the same terms as the appointment of [H’s parents] as obtained in the order of [date] made by Senior Judge Lush of this court.” (1) In order of priority to act as successor deputy replacing the incapacitated or deceased current deputies as listed hereafter, A B and C. (2) One or more of the above listed successor deputies will replace the incapacitated or deceased current deputies, each or both of them, upon the following:- (a) In the event of each or both of the deputies, namely [H’s parents] dying, upon production of the death certificate by the surviving deputy, with an accompanying letter to this court, sent within 28 days. (b) In the event of one or both of the current deputies becoming incapacitated, due notice shall be given either by the deputy who is incapacitated, each or both of them providing written confirmation that they no longer are able or wish to act as a deputy, or alternatively on production of evidence in writing that he or she are either or both incapacitated from the duty of deputy, or a report from a general practitioner or medical consultant. Such medical evidence or due notice to be produced to this court as soon as practical by way of a covering letter. (c) In the event of any of the above listed successor deputies becoming either incapacitated or dying, the last named successor deputy shall be appointed by the same method as set out above. (3) The authority of the deputies appointed as successors shall be in the same terms as the appointment of [H’s parents] as obtained in the order of [date] made by Senior Judge Lush of this court.”

The Special Visitor’s general observations

[25]To assist him in compiling the section 49 report, the Public Guardian asked one of the Court of Protection Special Visitors, Dr Peter Carpenter, to visit H. Dr Carpenter is a Consultant Psychiatrist (Learning Disabilities) and Associate Medical Lead in Learning Disabilities and Specialist Adult Services with the Avon & Wiltshire Partnership NHS Trust.

[26]Dr Carpenter presented his own report to the Public Guardian on 4 June 2015 and made some interesting general observations on people with autism. For example:

“One of the defining features of people with autism is that they have impaired emotional reciprocity when interacting with others. In the less able with autism, with minimal verbal communication, I expect to see little identification of other people as personalities in their own right, and the person will either interact indiscriminately with others, or be less interested in interacting at all. In those interacting less, then familiar people are more likely to be approached as they are seen as tools to provide support or what is desired (such as food). In those of normal intelligence, the person can be lonely and want interaction including to the level of an intimate relationship – socially interacting with familiar people is usually preferred as it is more predictable and so less stressful. As such, for people with autism of all abilities – though a defining characteristic of autism is impaired ability to develop and maintain peer relationships – having a familiar person to interact with can be expected to be less stressful for the person with autism and, so, more successful for both parties.”

[27]Dr Carpenter then went on to consider the effect of limited communication skills in the context of supported and substitute decision-making:

“One of the other defining features of people with autism is impaired communication. This works at several levels. For anyone with autism, one would expect to see a reduced ability to communicate emotions via their facial expression, body language and vocal variation of such things as pitch and emphasis. This means that anyone who does not know someone with autism may easily misinterpret how they are feeling. As such, anyone who does not know a person with autism, who has to work with them, needs to check with people who know them well, how to interpret the person’s expression and behaviour. It can be argued that this means that a person responsible for making a decision based on interpreting how a person with autism is feeling needs to be a person familiar with them, if they are non-verbal. However, it can also be argued that a familiar person is less likely to seek the views of others and reach a consensus, Certainly, a person who has good experience of working with different people with autism should have the skills to meet a new person with autism and discuss them with the familiar carers to form a judgment as good as a single familiar person. However, this would take time and be less immediate than the assessment of a familiar person.”

[28]Dr Carpenter concluded that, when the court is appointing a personal welfare deputy, different considerations apply from when it is appointing a property and affairs deputy. He said:

“I would argue that a deputy or attorney managing the property and finances of a person does not need a high level of personal knowledge of a person to act for them, given the universality of many of the issues regarding finances. I would argue that to be a deputy for a person’s health and welfare requires a much greater knowledge of the person’s life, emotional state, stressors, and possible desires than being a deputy for finances. As such, I would support the idea of family members who know a person well becoming deputies for health and welfare. In general, if it were anticipated that a successor deputy for health and welfare was likely to be needed in the next few years, then it would appear to me to be in a person’s best interests to appoint a successor at the same time as a deputy if there was a person who was known to have a good relationship with the subject and a good understanding of him or her who was willing to be successor.”

The Special Visitor’s specific observations

[29]Moving from a general overview to specific observations regarding H’s circumstances, Dr Carpenter described her current level of social interaction in the following terms:

“H does not have any important or complicated rituals but she likes things to be kept the same – rooms to have the same arrangement, books to be kept in the same place (though she tolerates them being taken out to be used). Now she is going to C’s house, she is expecting the rooms there to stay the same. C has allowed her to have control in one room, but not the rest of the house.” “H will accept trying new activities ... if led by a familiar person.” “H has difficulty meeting new people. She tends to ignore them or not do what they want. It takes her at least six months to get familiar with someone, during which time she will need the new person to be shadowed by her parents or some familiar other.”

[30]After receiving Dr Carpenter’s report, the Public Guardian asked him several supplementary questions, one of which was:

“What if, in a worst case scenario, the appointment of successor deputies was refused, and the appointed deputies were incapacitated. What would be the challenges presented if a person from outside H’s closer community became appointed to represent her?”

[31]His response was:

“As alluded to above, a new person coming in would have major problems communicating with H and assessing her reactions to various decisions made, even if the new person was familiar with autism. As such, they would find it necessary to take advice from within H’s current community and so be advised by the suggested future deputies, if they are at that time still part of her community. At the time of one of the deputies becoming incapacitated, I would expect one of the putative successors to apply to become a deputy, rather than have the court appoint someone from outside H’s community.”

The Building Societies Association

[32]In addition to asking the Special Visitor to see H, the Public Guardian approached a senior policy representative at the Building Societies Association (‘BSA’), to take soundings as to how banks and building societies might react to the wording of a court order appointing successive deputies. The questions asked and answers received were as follows:(1) Would the industry be likely to treat a successive deputy the same way as the (more common) replacement attorney? Yes, but we would need clarity as to when the successor deputy should take over.

(2) Would you accept a court order presented by a successor deputy without question that he is entitled to act as the successor deputy? Yes, though I can foresee problems where the succeeded deputy still wants to continue in that role (see ‘other guidance we would like’).

(3) Does this have any bearing on bank account naming policy? In the building society world, where account holders are members of the society with voting rights as well as customers, the preferred approach would be to re-name the existing account rather than open a new one.

(4) Am I missing anything else that’s important from an industry perspective? Other guidance we would like: How will a bank/building society know when is the right time for the successor deputy to start acting as deputy and for the succeeded deputy to stop? You would hope that in most cases there would be an amicable, voluntary handover between the two, but what happens when this is not the case? Examples might be: (a) Where an older deputy refuses to give way to a younger one. (b) Where a family are concerned that the older deputy is not running P’s finances in the way that they want, so they push for their replacement by the successor deputy. (c) We will need guidance on the bank’s duties/options in the above situations.

The Public Guardian’s views

[33]As I mentioned in paragraph 22, the purpose of commissioning the section 49 report was to enable the Public Guardian, as the person responsible for supervising deputies appointed by the court, to make his own representations on the desirability or otherwise of making successive appointments.

[34]Addressing the appointment of successive deputies in general, the Public Guardian expressed the following views: “There are several key considerations in this matter. Who would decide upon the identity of a successor deputy? If the appointed deputy is to decide the suitability of a successor deputy, then who is to say that they are best placed to make that decision? Once a decision is made about a successor deputy, it is done at a specific point in time, when all parties are in agreement. The Mental Capacity Act Code of Practice states, at page 137, that before a deputy’s appointment:• they [the proposed deputy] have the skills and ability to carry out a deputy’s duties (especially in relation to property and affairs)

• they actually want to take on the duties and responsibilities. In the case of a successor deputy, the Mental Capacity Act Code of Practice therefore indicates that:

• they will still have the skills and ability to carry out a deputy’s duties (especially in relation to property and affairs)

• they actually will want to take on the duties and responsibilities at any given time in the future.

• they [the proposed deputy] have the skills and ability to carry out a deputy’s duties (especially in relation to property and affairs)

• they actually want to take on the duties and responsibilities.

• they will still have the skills and ability to carry out a deputy’s duties (especially in relation to property and affairs)

• they actually will want to take on the duties and responsibilities at any given time in the future.

[35]Overall, the Public Guardian considered that successive appointments present too many ‘what if?’ conundrums and went on to say that:

“When addressing the appointment of successor deputies in general, Dr Carpenter states the following: “In general, if it were anticipated that a successor deputy for health and welfare was likely to be needed in the next few years, then it would appear to me to be in a person’s best interests to appoint a successor at the same time as a deputy if there was a person who was known to have a good relationship with the subject and a good understanding of him or her who was willing to be successor.”

The Public Guardian highlights the above points and summarises that his view is that the appointment of a successor deputy is only likely to be appropriate in very limited circumstances, such as the example outlined in the Code of Practice (para. 8.44) i.e. when the primary deputy is very elderly or near the end of life, for reasons of the practical difficulties it creates. However, should the court consider than the appointment of a successor deputy is appropriate, the Public Guardian would suggest that it is clearly specified in the court order the circumstances in which the successor deputy is to take over, whether it would be necessary to return to the court to confirm the appointment and, if not, what documentation should be produced to others that evidences that the successor’s appointment is now valid. Furthermore the Public Guardian would also ask that it is specified in the order that the successor deputy is to notify him of their succession in order that he may fulfil his statutory duties to maintain the register and supervise deputies. Furthermore, given the result of the communication with the Building Societies Association and the questions they raised, the Public Guardian is mindful that, without consideration to all interested stakeholders – which may in turn lead to a full review of processes, and without a reasonable review period given to a successive deputy’s appointment, the consideration of an appointment of a successive deputy ‘at a given point in time’ may cause more issues for both the client and the successive deputy than if a fresh application had been made at the required time.” “In general, if it were anticipated that a successor deputy for health and welfare was likely to be needed in the next few years, then it would appear to me to be in a person’s best interests to appoint a successor at the same time as a deputy if there was a person who was known to have a good relationship with the subject and a good understanding of him or her who was willing to be successor.”

[36]Addressing the appointment of successive deputies specifically in H’s case, the Public Guardian stated as follows:

“The Public Guardian recognises Dr Carpenter’s comments relating to H, and understands that in her case there is greater difficulty in forming new relationships, and also that the appointment of a successive deputy may provide an incentive for them to maintain contact in the future. However, for the appointment of a successive deputy to be deemed appropriate, consideration must be given to what may be in H’s best interests, not just at this given point in time, but for future best interests. The Public Guardian would have concerns if a successive deputy were appointed without first addressing how all relevant stakeholders would successfully interact with the future appointment, in a manner that was at no point detrimental to H. The Public Guardian, while unable to comment on the best course of action, also gives consideration to what would be the least restrictive option for H – the appointing of a successor deputy (or deputies) now, given the potential issues with having that appointment recognised in future, or, as Dr Carpenter states, and application made to the court at a future date by those closest to H at that point in time.”

The law relating to the appointment of successive deputies

[37]Section 19(5) of the MCA, which authorises the appointment of successive deputies, is set out in paragraph 3 above. The policy considerations underlying this provision can be found in the Law Commission’s Report number 231, Mental Incapacity, which was published on 28 February 1995. In both the report and the consultation paper that preceded it, the Law Commission used the word ‘manager’ for what the MCA now terms as a ‘deputy’. Paragraph 8.43 of the report said as follows:

“We suggested in our consultation papers that it might sometimes be appropriate for more than one manager to be appointed. Respondents agreed that this might be useful. … It may also be that the best candidate is already elderly and wishes to be sure that someone will take over at a time in the future. If there is a suitable person to take over then the court should be able to make such provision at the time when it is looking at the case. Some foreign jurisdictions also provide for a ‘standby’ manager to be appointed, to take over on a temporary basis if the manager should die or become incapable of acting. This is only likely to be necessary in the rare case of a disabled person who should not be left for however short a period without a manager to exercise certain powers. Provision for a standby manager may, however, allay the fears of those respondents who pointed out that many elderly carers of young disabled persons experience great anxiety about what will become of the younger person once they, the carers, have ‘gone’.”

[38]There was a footnote to paragraph 8.43, which said that:

“The vast majority of respondents agreed with our provisional view that powers of management over another human being should not be passed on by testamentary writing as if they were an item of property (Consultation Paper No 128, para, 6.21).”

[39]Consultation Paper No 128, Mentally Incapacitated Adults and Decision-Making: A New Jurisdiction, merits further consideration in its own right because it highlights the contradiction between successive appointments, on one hand, and orders of limited duration on the other. “6.20 … We do not anticipate many long-term orders and therefore doubt the need for successive or alternate managers to be appointed. We invite comments on a proposal that the judicial authority may appoint joint, joint and several, alternate or successive personal managers. 6.21 In those cases where parents wish to provide a continuing framework of care and supervision for a mentally disabled child, they may seek to transfer any management powers granted to them by testamentary appointment of a substitute. This could be distressing and stigmatising for the incapacitated person and we do not think decision-making powers should be transferred as if the person concerned were still a child. We have proposed that the judicial authority have power to appoint successive managers, and think it better in principle to deal with this situation in that way. If a further application is necessary, the views of deceased managers could be taken into account. 6.22 The ‘least restrictive option’ suggests that all orders should be of limited duration, Most reformed jurisdictions elsewhere require guardianship orders to include a review date, with the maximum period varying (for example, 3 years in Victoria and New Zealand, 6 years in Alberta). Many personal orders will have to be limited in time because of the general provision as to benefit and least restrictive intervention. It is important that orders appointing managers have a maximum life, even if in some cases the scope for circumstances to change is limited.”

[40]The Mental Capacity Act Code of Practice discusses successive appointments at paragraph 8.44, which says as follows:

“What happens if a deputy can no longer carry out their duties? When appointing a deputy, the court can also appoint someone to be a successor deputy (someone who will take over the deputy’s duties in certain situations). The court will state the circumstances under which this could occur. In some cases it will also state a period of time in which the successor deputy can act, Appointment of a successor deputy might be useful if the person appointed as deputy is already elderly and wants to be sure that somebody will take over their duties in the future, if necessary. Scenario: Appointing a successor deputy Neil, a man with Down’s syndrome, inherits a lot of money and property. His parents were already retired when the court appointed them as joint deputies to manage Neil’s property and affairs. They are worried about what will happen to Neil when they cannot carry out their duties as deputies any more. The court agrees to appoint other relatives as successor deputies. They will then be able to take over as deputies after the parents’ death or if his parents are no longer able to carry out the deputy’s role.”

Scenario: Appointing a successor deputy

Discussion

[41]Having considered the medical evidence, I am satisfied that H lacks capacity to make decisions on most matters regarding her property and affairs and personal welfare because of an impairment of, or a disturbance in the functioning of, the mind or brain.

[42]Section 1(5) of the MCA requires that “An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.”

[43]The MCA doesn’t define ‘best interests’ but section 4(2) requires that the person making the determination as to what is in P’s best interests “must consider all the relevant circumstances and, in particular, take the following steps.”

[44]However, ‘the following steps’ aren’t tremendously helpful in this case in identifying any wishes or opinions other than those held by H’s parents:(a) It is unlikely that H will ever have capacity to decide the matter in question (section 4(3)).

(b) It is neither practicable nor possible to permit and encourage her to participate, or to improve her ability to participate, as fully as possible in the decision-making process (section 4(4)).

(d) H is unable to express any present wishes and feelings about the matter (section 4(6)(a)).

(e) The beliefs and values which would be likely to influence H’s decision if she had capacity are largely speculative (section 4(6)(b)), as are the other factors that she would be likely to consider if she were able to do so (section 4(6)(c)).

(f) As regards the views of anyone engaged in caring for H or interested in her welfare (section 4(7)(b)), the court is well aware of her parents’ views as to what would be in her best interests and will give due weight to them.

(g) The views of any deputy appointed for H (section 4(7)(d)) are the same as her parents’ views. Her parents are her deputies.

[45]In addition to the steps mentioned in section 4, when determining what is in HE’s best interests, the court must also have regard to the principles in section 16(4), namely that:(a) a decision of the court is to be preferred to the appointment of a deputy; and

(b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.

[46]In H’s case, I am satisfied that the appointment of a deputy is necessary and is preferable to the court making ongoing decisions about her property and affairs and personal welfare.

The balance sheet approach

[47]In the absence of a clear steer from section 4 of the MCA - apart from H’s parents’ views, of course - a balance sheet of the respective advantages and disadvantages may help us to identify the issues and determine whether the appointment of successive deputies would be in H’s best interests.

[48]Some of the disadvantages of a successive appointment are as follows:(a) This application is based on the false premise that, on the death of H’s parents, the Court of Protection would appoint someone from outside H’s circle of support as her deputy. Her parents were particularly worried that Social Services would muscle in. Although it is possible that at the material time there could be no suitable person who is willing and able to act as H’s deputy, it is unlikely that the court would contemplate appointing anyone from outside her family or immediate community.

(b) The persons who constitute H’s support network could change at any time after the appointment has been made, even fairly soon. I have a good example to illustrate this point. John Friel last appeared before me on 4 July 2013 in an identical application concerning AG, a young man with cerebral palsy, who was born in 1995. AG’s parents, who are high net worth individuals, proposed that, after both of them had died or become incapacitated, two financial advisers, who are family friends, would step in and act as his deputies for property and affairs, and an orthopaedic nurse practitioner, who is also a family friend, would become his deputy for personal welfare. After I had explained to Mr Friel and AG’s mother the impracticalities and imponderables associated with appointments of this kind, I asked Mr Friel to draft the order he required containing the successive appointment, but I heard nothing further from him. I asked him at the hearing on 14 July 2015 why never came back in AG’s case, and he said that he understood that AG’s parents no longer regarded one of the proposed successor deputies as suitable, and that they had decided not to proceed with the application, after all.

(c) There are practical difficulties arising from the wording of the successive appointment. I am by no means convinced that Mr Friel’s proposed wording, set out in paragraph 24 above, is foolproof. Nevertheless, as he has spent the last two years perfecting it and as it reflects the wishes of his clients, I propose to incorporate it in the order, subject to amendments whereby any death certificate or evidence of incapacity is produced to the Public Guardian rather than to the court, as recommended by the Public Guardian in paragraph 35.

(d) There is currently no infrastructure in the MCA, the Court of Protection Rules or any practice direction governing the procedure to be followed on a successive appointment. It is not entirely clear what happens. By contrast, there are reasonably clear provisions in section 13 of the MCA regarding the circumstances in which a replacement attorney can replace an original attorney and there is a prescribed form on which an attorney can disclaim his appointment. There is no equivalent form, however, enabling a deputy to resign. What usually happens is that a deputy who wishes to resign or retire makes an application to the court for a new deputy to be appointed in his place.

(e) The successor deputies may encounter difficulties in getting banks, building societies and other financial institutions to accept the order for the reasons suggested by the senior policy adviser at the BSA, whom the Public Guardian consulted when preparing the section 49 report.

(f) There will be a problem over the amount of security the successor deputies are required to obtain and maintain, especially if H’s parents die leaving their combined estates to her absolutely, rather than under a trust.

(g) A successive appointment is incompatible with the requirement in international human rights law that any measures affecting a person’s legal capacity should “apply for the shortest time possible and [be] subject to regular review.” I have already addressed this issue in paragraph 6 above.

(h) The relevant literature on successive appointments (for example, the Law Commission’s report on Mental Incapacity and the Mental Capacity Act Code of Practice) seems to envisage a scenario in which the succession is likely to take place imminently or in the reasonably foreseeable future. These considerations do not apply in this case.

(i) As the Public Guardian put it, maybe there are too many ‘what if?’ conundrums.

[49]Some of the advantages of appointing successive deputies are as follows:(a) There will be continuity of care and decision-making.

(b) There will be continued contact with persons whom H knows.

(c) The proposed successive deputies are people who can communicate with H and understand her. Her communication is highly idiosyncratic and it takes someone new at least a year to be able to understand her.

(d) By appointing them now, the successive deputies will feel a stronger sense of responsibility and commitment towards H.

(e) It would reduce the amount of paperwork and bureaucracy, which can be onerous for someone who is not a professional person, as well as expensive.

(f) It will give her parents peace of mind, which will filter through to H.

(g) No harm will be done to H by appointing successive deputies.

Decision

[50]Although the disadvantages slightly outnumber the advantages, I propose to allow the appointment of successive deputies in this case.

[51]The factor of magnetic importance is that the appointment of successive deputies will give H’s parents peace of mind. It means that they can sleep soundly at night, knowing that they have put their affairs in order. For the last twenty-six years, their lives, their needs and their rights have been completely subordinated to H’s and, when say they that the appointment of successive deputies would be in her best interests, I believe them. Moreover, they still insist that it would be in her best interests, even though they are now fully aware of the problems associated with an appointment of this kind.

[52]In paragraph 8.43 of its report on Mental Incapacity, the Law Commission noted that “many elderly carers of young disabled persons experience great anxiety about what will become of the younger person when they, the carers, have gone.” If an order appointing successive deputies will relieve H’s parents of that anguish, then these proceedings will have been worthwhile.

[53]Putting their affairs in order sounds like making a will. In paragraph 6.21 of its Consultation Paper No 128, the Law Commission observed that some parents attempt to provide a continuing framework of care and supervision for their mentally incapacitated child by means of a testamentary appointment, and went on to say:

“We have proposed that the judicial authority have power to appoint successive managers, and think it better in principle to deal with this situation in that way.”

Although the Code of Practice contemplates a scenario in which the succession is likely to take place imminently or in the reasonably foreseeable future, it is clear that the circumstances of people like H and her parents were one of the prime considerations that prompted Parliament to enact section 19(5) of the MCA in the first place.

[54]It is suggested that, by appointing them now, the successor deputies will feel a stronger sense of responsibility and commitment towards H. I believe this, too. Their role is not unlike that of godparents. They are individuals who have been selected by the parents to take an interest in their daughter’s upbringing and development and to take care of her when her they are no longer around. English ecclesiastical law anticipates that godparents “shall be persons who will faithfully fulfil their responsibilities” (Canon B23.2). I hope that H’s successor deputies will faithfully fulfil their responsibilities when the time comes for them to take over from her parents, whenever that may be.