AJ, Re [2015] EWCOP 62

IMPORTANT NOTICEThis 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 11933082[2015] EWCOP 62
COURT OF PROTECTION
Date 6 October 2015
MENTAL CAPACITY ACT 2005
First Avenue House
42-49 High Holborn
London WC1V 6NP
Before
SENIOR JUDGE LUSH
Between
THE PUBLIC GUARDIANApplicantEJRespondent
Re AJ
Fatima Chandoo for Public GuardianThe respondent in person for in personHearing Hearing date: 17 September 2015
JUDGMENTSenior Judge Lush
[1]This is an application by the respondent for the court to reconsider two orders that were made on the papers. The first order discharged him as his daughter’s deputy for property and affairs and the second order appointed a panel deputy to act in his place.

The background

[2]These proceedings relate to Angharad, who is 21 and lives with her father in the Cardiff area.[3]Her father, Edward, is 57 and is a semi-retired, self-employed financial adviser.[4]Her parents married in 1989, separated in June 2012, and went through an extremely acrimonious divorce, which was made absolute on 18 December 2012.[5]Her mother, Jayne, died of breast cancer seven months later, on 14 July 2013.[6]Angharad has no definitive diagnosis but her disabilities include:(a) developmental delay;(b) ptosis (the medical term for a drooping eyelid);(c) coarctation of aorta (a congenital heart condition); and(d) dysmorphia (a mental disorder caused by an obsessive preoccupation with a perceived defect in her appearance).

Deputyship orders

[7]On 16 February 2011 District Judge Susan Jackson appointed Edward to be Angharad’s sole deputy for both property and affairs and personal welfare.[8]On 17 July 2012, shortly after Angharad’s parents had separated, District Judge Paul Mort appointed both of them jointly and severally to be her deputies for property and affairs and personal welfare.[9]On 18 July 2014 – almost a year after Jayne’s death - District Judge Stephen Rogers appointed Edward and Gwilym jointly and severally to be Angharad’s deputies for property and affairs and personal welfare.[10]Gwilym lives in the Cardiff area and is a close friend of the family. He agreed to be appointed as a deputy because he was committed to ensure Angharad’s overall welfare in the event that her father was no longer around. However, he was never actively involved as a deputy.

The application

[11]On 20 October 2014 the Public Guardian applied to the court for the following[12]The Public Guardian also filed an application notice asking for permission to serve a redacted copy of the Court of Protection Visitor’s report to ensure that the identity of the concern raiser would remain anonymous.[13]The application was accompanied by a witness statement dated 2 September 2014 and made by Ruth Evans, who investigated this matter at the Office of the Public Guardian (‘OPG’). She said that:(a) Concerns were raised on 6 October 2012 that Edward had been misappropriating Angharad’s funds and, in particular, a sum of £5,000, which was deposited in a Britannia Building Society account.(b) There were also concerns about the whereabouts of the net proceeds of sale of a holiday cottage in Pembrokeshire, which had belonged to Angharad’s late mother, Jayne.(c) Jayne’s residuary estate is held in trust to pay or apply the capital and income to Angharad during her lifetime and, on Angharad’s death, the balance of the trust fund is to be split equally between Marie Curie Cancer Care and Barnardo’s.(d) In a letter of wishes to the trustees of her will dated 12 June 2012 Jayne had said, “It is my wish that in no circumstances should Edward have any access to the funds held in the trust fund.”(e) The annual reports for 2011/12, 2012/13, and 2013/14 were still outstanding.

Orders

[14]On 24 October 2014 I made an[15]On 18 November 2014 Angharad signed an acknowledgment of service, in which she said she wished to be joined as a party and that she objected to the application and wished the existing order to remain in force.[16]On the same day, 18 November 2014, Edward signed an acknowledgment of service, in which he objected to the application. He said:
“There are elements in the witness statement of Ruth Evans that appear to be inconsistent or have requested information outside my control. Full details will be provided in 14 days.”
[17]Nothing further was received from him within the fourteen days to which he had referred.[18]A panel deputy, Timothy Haggar, of Red Kite Law, Solicitors, Haverfordwest filed a deputy’s declaration confirming that he was willing to act in this matter.[19]By an order dated 10 April 2015 District Judge Michael Payne discharged the deputies and directed that Timothy Haggar be appointed as deputy for property and affairs in a separate order setting out his duties and the scope of his authority.[20]On 20 April 2015 I made the separate order appointing Timothy Haggar to be the new deputy.[21]On 6 May 2015 Edward applied to the court to reconsider the orders that had been made on 10 and 20 April 2015.[22]On 14 July 2015 I made an[23]I did not make an order joining Angharad as a party to the proceedings, because I considered that her interests and position could properly be secured without joining her as a party and having to appoint a litigation friend to act on her behalf.

The hearing

[24]The hearing was attended by Edward and Angharad and Anita Ray, a neighbour of theirs, who had filed a witness statement on 3 January 2015. Fatima Chandoo of the OPG appeared on behalf of the Public Guardian.

The law relating to the removal of a deputy

[25]The circumstances in which the court may remove a deputy are set out in section 16(8) of the Mental Capacity Act 2005, which provides that:
“The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on him if it is satisfied that the deputy – (a) has behaved, or is behaving, in a way that contravenes the authority conferred on him by the court or is not in P’s best interests, or (b) proposes to behave in a way that would contravene that authority or would not be in P’s best interests.” (a) has behaved, or is behaving, in a way that contravenes the authority conferred on him by the court or is not in P’s best interests, or (b) proposes to behave in a way that would contravene that authority or would not be in P’s best interests.”

Decision

[26]I propose to set aside the orders of 10 and 20 April 2015 and to reinstate Edward as Angharad’s deputy for property and affairs. My reasons for doing so are as follows.[27]There is a recital in District Judge Payne’s order of 10 April 2015, which says that “Edward has not filed any evidence in support of his objection.” This is untrue. Edward did, in fact, file a response on 31 March 2015 (albeit, way out of time), which was date-stamped as having been received by the court on 2 April 2015, but wasn’t immediately placed on the file. District Judge Payne went ahead and made his decision without seeing or considering this response.[28]Similarly, Edward’s response was not on the file when I made the order of 20 April 2015 implementing District Judge Payne’s order that Timothy Haggar should be appointed as the new deputy by means of a separate order setting out his duties and the scope of his authority.[29]I accept Edward’s reasons for being unable to produce the annual deputyship reports for the years 2011/12, 2012/13 and 2013/14.[30]He said that did not produce the first report, for the accounting year 2011/12, because he was never asked to produce one. I know from my own experience that this is consistent with the OPG’s practice at the time. In fact, the Public Guardian only asked him to file a report in October 2012 after concerns had been raised regarding his conduct.[31]I accept Edward’s account that, when he and Jayne split up, Jayne took all the paperwork relating to Angharad’s finances with her, and that this paperwork (if it still exists and wasn’t disposed of in the clearance of her house after her death) is possibly held by the trustees of Jayne’s will, with whom Edward has a rather negative relationship.[32]There is a Court of Protection General Visitor’s report of an interview between the visitor and Jayne on 14 April 2013. The visitor noted that:
“Since she moved out of the matrimonial home, Jayne has been having all of Angharad’s mail rerouted to their new address.”
The visitor also stated that:
“Jayne informs me that she is now in full control of her daughter’s income and assets.”
[33]I accept Edward’s explanation that the sum of £5,000 deposited in a Britannia Building Society account does not form part of Angharad’s free estate but was a gift made to him by his mother, Rita, to apply for Angharad’s benefit. Rita’s sister, Nova, had died intestate. Rita inherited the entire estate, and had given her three sons £5,000 each for the benefit their children. These funds were to be spent as they thought fit. Edward had opened the Britannia account for this purpose.[34]Edward’s explanation is corroborated by Anita Ray, who is a retired bank official, in her witness statement dated 3 January 2015. It is also consistent with a statement in the visitor’s report:
“Jayne informs me that she had no idea this account existed.”
[35]I do not know who the whistle-blower or concern-raiser was in this case. However, I believe Edward’s submission that, following her diagnosis of terminal cancer, Jayne’s attitude towards him changed completely and that their relationship broke down rapidly. There was a sharp polarisation between friends who supported Edward and those who supported Jayne, which was intensified by the brevity of Jayne’s anticipated life expectancy, and I assume that the whistle-blower was one of her adherents.[36]The concern-raiser’s suggestion that Edward may have misappropriated the net proceeds of sale of Jayne’s holiday cottage in Pembrokeshire was unfounded and potentially malicious. Jayne left her estate to her trustees. They sold the property for £140,000 and the net proceeds of sale are currently held by the trustees’ solicitors, Hugh James.[37]Jayne’s memorandum to the trustees of her will dated 12 June 2012 – “It is my wish that in no circumstances should Edward have any access to the funds held in the trust fund” – cannot be construed as an effective challenge to his probity or integrity. It is simply a caustic comment made in the heat of the moment by someone involved in a rancorous divorce.[38]Apart from the funds that are held in trust for her, Angharad has very little money indeed, and the appointment of a panel deputy is totally disproportionate. It is also unfortunate that the panel deputy who was selected is based in Haverfordwest, which is about a hundred miles from where Angharad and Edward live.[39]Since Jayne’s death in July 2013 Angharad has lived with her father. I could tell from her attendance at the hearing on 17 September 2015 that she is very fond of him and I have no doubt that the acknowledgment of service she completed on 18 November 2014 opposing the application and wishing to maintain the status quo is a true reflection of her wishes and feelings then and now.[40]I do not consider that there are sufficient grounds to justify overriding Angharad’s and Edward’s rights under Article 8 of the European Convention on Human Rights. There is no need for the State to intervene for the avoidance of crime because, as far as I can see, Edward hasn’t committed any crime and, because of the numerous safeguards that are in place, it would be difficult, if not impossible, for him to misappropriate Angharad’s funds. Jayne’s trustees have a discretion regarding the application of any funds under her will trust. The local authority will monitor his use of the direct payments to which Angharad is entitled, and Edward’s management of the limited resources in Angharad’s free estate will be supervised by the Public Guardian in the usual way.[41]Having regard to all the circumstances, therefore, I am not satisfied that Edward has behaved, or is proposing to behave, in a way that contravenes the authority conferred on him by the court, or is not in Angharad’s best interests.[42]As I have already said, I believe Edward when he says that he doesn’t have access to the necessary paperwork and, pursuant to section 16(5) of the Mental Capacity Act 2005, I propose to waive the requirement for him to produce the annual reports for 2011/12, 2012/13 and 2013/14. He can start with a clean slate. Having been the subject of an extensive investigation by the OPG, he should by now be fully aware of the obligations and duties of a deputy and the standards that are expected of him. He will also be aware that, in the event that he fails to live up to those expectations, the OPG will come down on him like a ton of bricks.

order

1. An order directing that a member of the panel of deputies be invited to make an application for their appointment as deputy to make decisions on behalf of Angharad in relation to her property and financial affairs. Upon appointment of a member of the panel of deputies, Edward and Gwilym are to be discharged as deputies. 2. An order that Edward shall account to the new deputy for all his dealings and transactions with the management of Angharad’s property and financial affairs from 16 February 2011 to present and to provide the deputy with copies of all documents, correspondence or records he holds or has access to in respect of Angharad’s property and affairs. order:(a) requiring the Public Guardian to serve the papers on the deputies by 7 November;(b) permitting the Public Guardian to serve a redacted version of the Visitor’s report;(c) directing Edward to respond to the application by 28 November;(d) instructing an officer of the court to invite a panel deputy to be appointed in place of the existing deputies; and(e) asking for the matter to be referred back to a judge on or after 1 December. order: (a) requiring an officer of the court to send the Public Guardian a copy of Edward’s application; (b) the Public Guardian to file a response by 14 August; (c) inviting the respondents to file and serve any further evidence and submissions by 4 September; and (d) listing the matter for an attended hearing before me at Cardiff Civil Justice Centre at 2pm on Thursday 17 September 2015. I was due to give a talk to the Court of Protection Users’ Group there at 4.30 that afternoon, and it seemed sensible to hear the application in Cardiff, rather than require Edward and Angharad to travel up to London.