MLJ, Re [2015] EWCOP 63

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.

[2015] EWCOP 63

COURT OF PROTECTION

Case No 11780867

Date 7 October 2015

MENTAL CAPACITY ACT 2005

First Avenue House

42-49 High Holborn

London WC1V 6NP

Before

SENIOR JUDGE LUSH

Between

GLJApplicant

MEJRespondent

Re MLJ

Michael Batt, instructed by Hardman & Watson for Applicant

The respondent in person and unrepresented for in person

Hearing Hearing date: 9 September 2015

JUDGMENT

Senior Judge Lush:

[1]This is a contested application for the appointment of an additional deputy to act jointly with the existing deputy for property and affairs.

The background

[2]Miriam was born on 13 July 1918 and is now 97.

[3]She and her husband moved from Shropshire to Birchington in Kent in 1970. He died in 1985.

[4]Since 2009 she has resided in a nursing home in Westgate-on-Sea, Kent.

[5]She has two children:(a) Malcolm, who was born on 31 May 1957 and is a retired police officer. He lives in Welling, Kent; and

(b) Georgina, who was born on 13 April 1959, is unemployed and lives in Westgate-on-Sea.

[6]Miriam had polio in childhood and has always had mobility problems. She also has advanced Alzheimer’s disease.

[7]On 11 June 2010, at a time when Georgina was living and working in Turkey, District Judge Alexander Ralton made an

[8]On 18 December 2014 Georgina applied to the court for:(a) an order appointing her to be a joint deputy for property and affairs with her brother, Malcolm; and

(b) an order that Malcolm should produce to the court a full account in respect of his handling of Miriam’s financial affairs.

[9]Fosters Law, Herne Bay, initially acted for Georgina in connection with this application, but she subsequently instructed Hardman & Watson, Solicitors, Broadstairs.

The applicant

[10]Georgina was convicted in 1991 for shoplifting, and in 1999 she was cautioned for common assault on a woman with whom her husband was having an affair.

[11]In 2008 she moved to Turkey and ran a telecoms business in Istanbul. The business went bust and she returned to England in 2012 and applied for a debt relief order.

[12]Georgina has constantly complained about the quality of care her mother is receiving, and the nursing home has banned her twice from visiting. The first ban took place in 2013 and lasted five months. Georgina had forcibly fed her mother with unthickened fluids, contrary to advice given by her mother’s speech and language therapist. Miriam has issues with swallowing, as a result of which she is on a diet of thickened fluids and purées to prevent her from choking. Georgina’s response was, “She is my mum and I shall give her whatever I want.”

[13]The second ban, which is still in force, was issued on 9 April 2015 because Georgina had taken a photograph of the woman with whom her mother shares a room “without consent, without clothing, soiled and in an undignified manner.” As a consequence of this an adult protection alert was raised with Kent County Council and Kent Police.

[14]Georgina’s account of the incident was as follows:

“On 9 April 2015 an incident at the nursing home occurred. I made numerous requests to staff for the lady sharing the room with my mother to be tended to. The room door was wedged open, the lady was naked, not covered, lying in urine and faeces which was also on the bed rails and on the carpet. After 50 minutes and several requests and seeing that the faeces on the carpet had been stood in, I took a photograph of the footprint in the faeces as I intended to make a formal complaint. I did not take a photograph of any part of the lady’s body.”

The objection

[15]On 18 May 2015 Malcolm completed an acknowledgment of service, in which he objected to the application. He said:

“Georgina is not suitable to be a deputy to Miriam. My evidence is provided on COP24 attached together with supporting documentation. Order to remain as was ordered on 2 July 2010.”

[16]The acknowledgment of service was accompanied by a witness statement, in which Malcolm said as follows. “I have previously submitted a written statement to the Court of Protection in order to be appointed a deputy for Miriam d.o.b. 13.7.1918 (my mother). I rely on this statement. Since being appointed deputy, I have carried out my duties efficiently and in my mother’s best interests according to the Mental Capacity Act 2005. With regard to Miriam’s financial accounts, I have provided the necessary document to the Office of the Public Guardian annually and whenever requested. I rely on this. As to the sale of Miriam’s property, I rely on 2(d) of the order giving me authority to sell (the house in Birchington). I have ensured that Miriam has access to funds to meet any of her care needs and providing supporting documentation for (the matron of the nursing home). I do not speak to Georgina and have no contact with her. I was unaware of where she was residing until I received her C.o.P. application. I do not feel that it is either necessary or in my mother’s best interests for Georgina to be appointed as a deputy at this stage. If anything, it would be detrimental. I have requested a full audit of Miriam’s finances by the O.P.G.” I have requested a full audit of Miriam’s finances by the O.P.G.”

[17]Malcolm exhibited to his witness statement a letter dated 12 May 2015 from the manager of the nursing home, which concluded as follows:

“On several occasions we have discussed with the proprietor the fact that having Miriam has been detrimental to the home due to the behaviour of her daughter, but after the best interests meetings we have been requested to allow Miriam to remain with us, as a big change, such as a move to another home, could be detrimental for her health and we wouldn’t want that for her. Miriam is an exceptional lady, a delight to nurse and we love her and her company. Therefore we kindly request to take into consideration that Miriam is totally covered financially with her current finance deputyship. Whatever she needs she gets promptly and, if this had to change, having the knowledge we have of Georgina’s erratic behaviour and threats, I am concerned it will be detrimental for Miriam and may not be in her best interest.”

Orders

[18]On 2 June 2015 I made an order for a section 49 report to be prepared by the Public Guardian by 31 July 2015. The Public Guardian has a statutory duty under section 58(1)(c) of the Mental Capacity Act to supervise deputies appointed by the Court of Protection. The matters I asked him to investigate are set out in italics at paragraph 23 below and they are followed by his responses.

[19]On 3 July 2015 I made an order requiring:(a) a copy of Malcolm’s acknowledgment of service and witness statement to be sent to Georgina’s solicitors straightaway;

(b) a copy of the Public Guardian’s section 49 report to be sent to the parties and their legal advisers by Friday 7 August;

(d) an attended hearing to take place on Wednesday 9 September 2015.

The Public Guardian’s section 49 report

[20]On 31 July 2015 the Public Guardian filed his section 49 report. When compiling the report he had access to the deputyship reports submitted by Malcolm each year since the order appointing him in 2010, and also the reports of three separate visits made by a Court of Protection Visitor:(a) Helena McCrae on 28 November 2010;

(b) Dee Delo on 9 December 2013; and

[21]The Public Guardian’s report contained a chronology of safeguarding and best interests meetings, beginning with a best interests meeting on 10 March 2010 following Georgina’s first attempt to remove Miriam from the nursing home. The outcome of this and all the subsequent meetings was that it was not in Miriam’s best interests to be moved.

[22]The report considered the deputy’s thoughts on working with his sister, which were as follows:

“The deputy explained that they had not spoken or really seen each other since 1985, other than briefly in 1991 when their grandmother passed away, in 2009 when they met at the hospital but did not exchange words, and then lastly at the best interests meeting held at the nursing home on 18 December 2013. The deputy said that his sister was confrontational and aggressive. They live a distance apart and would never agree. The deputy said that he would not know where to start with his sister. The deputy said that he did not think mediation would work but would try if requested by the judge. The deputy said that he knows there is 1 of 4 outcomes: (1) he remains sole deputy; (2) his sister is appointed sole deputy; (3) they are made joint deputies, or (4) a panel deputy is appointed. The deputy said that the client’s assets were in a better shape than when he took on the deputyship; that he had secured reimbursement from the NHS; the client’s debt is under control and will be paid within the agreed timescales, and the client was safe. The deputy hoped the judge would rule in his favour and, if it was deemed appropriate to appoint a panel deputy, he would work with that person as directed.”

[23]The Public Guardian concluded the section 49 report with the following responses to the matters I had asked him to investigate:(a) Whether Malcolm’s performance as deputy for property and affairs since 2 July 2010 has been satisfactory. The deputy has provided the required reports and evidence when requested supporting his actions as deputy throughout the reporting periods. He has also provided any additional evidence during visits which has been seen by the visitors and can be independently corroborated. The deputy has taken consideration to working with the various professionals required while acting as deputy and made well informed decisions before carrying out actions required. The Public Guardian has no concerns with the deputy’s actions to date in the management of his mother’s property and affairs.

(b) So far as is reasonably ascertainable, Miriam’s present wishes and feelings with regard to the application and as to who should manage her financial affairs. The three visit reports have all indicated that Miriam is unable to provide any input into who manages her property and affairs. We are also unable to ascertain what her wishes and feelings are to this application due to her condition. Visit one reported:

“Client has dementia and associated memory recall problems. She was unable to provide an opinion regarding the management of her finances.”

Visit two reported:

“The client looked well, happy and content with what she was doing. I commented on her hair being lovely and she smiled. I was unable to engage with any conversation. This was the first time the client had been out of bed for six weeks.”

Visit three reported: “Within all the minutes it clearly states that the client has advanced dementia and that she does not have the capacity to make decisions for herself regarding the issues discussed. The client acknowledged my presence by making a few mumbled sounds but I was unable to engage in conversation and therefore unable to ask any specific questions as requested in the commissioning document. The client has a formal diagnosis of dementia which as recorded in her care plan is in the advanced state. The client cannot retain information or express her opinions.” (c) Whether the court should make any appointment or directions under rule 3A(2) of the Court of Protection Rules 2007 regarding Miriam’s participation in these proceedings. Due to the advanced nature of her condition as reported in the visit reports we have received, it is unlikely that Miriam will be able to either participate herself in the proceedings or make her wishes and feelings known to an independent party who could act on her behalf. (d) The Public Guardian may also wish to comment (but is not required to do so) on whether the application by Georgina for her appointment as a deputy for property and affairs with her brother is likely to be in Miriam’s best interests. It is unlikely, due to the current situation between Malcolm and Georgina, that a joint appointment would be workable. The evidence shows that they have not spoken for several years and it is clear that the relationship has broken down. The nursing home manager has advised that if Georgina is appointed as deputy for her mother, it will result in Miriam being removed from the nursing home. This is unlikely to be in Miriam’s best interests.

The hearing

[24]Georgina filed and served a witness statement on 23 August 2015. Actually, it wasn’t a statement, but a list of documents that she had appended as exhibits.

[25]The hearing took place on Wednesday 9 September 2015 and was attended by:(a) Mr Michael Batt, a barrister at Becket Chambers, who was instructed by Hardman & Watson and was accompanied by his client Georgina; and

(b) Malcolm, who was unrepresented.

[26]Mr Batt said that Georgina sought one of two possible orders: either(1) a joint appointment as deputy with her brother, or

(2) the appointment of a completely independent professional deputy.

[27]Mr Batt submitted that there were also two main issues:(a) the sale of Miriam’s house in Birchington could be contentious; and

(b) Georgina may wish to move her mother from the nursing home.

[28]He said that, with regard to the section 49 report, the Public Guardian had not spoken to Georgina and her views were neither canvassed nor considered.

[29]Malcolm said that his mother’s estate consists of: A 3-bedroom detached house in Birchington 225,000 An easy access savings account 36,000 A current account 2,500 £263,500

[30]There is a debt of £3,400 to Kent County Council in respect of care fees, which is secured by a charge on Miriam’s house in Birchington. Malcolm is currently paying off this debt at a rate of £1,000 a month.

[31]Miriam’s annual income consists of: State benefits 7,862 Rent from the house 9,540 £17,402

[32]Miriam’s outgoings are minimal because she is in receipt of NHS Continuing Health Care. Malcolm had applied for the award to be backdated from February 2013 to April 2011 and received a refund of £43,800, which was placed in the easy access savings account.

[33]The house in Birchington has been on the market twice in the past, but is not currently on the market and Malcolm has no immediate plans to sell it. The property is let on a six month assured shorthold tenancy agreement.

[34]Malcolm produced a copy of Miriam’s will. It was prepared by Robinson & Allfree Solicitors, Birchington, and was executed by Miriam on 6 September 1990, shortly after she had been diagnosed as having breast cancer. In it she appointed her son and daughter to be her executors and gave her entire estate to them in equal shares with substitutional gifts to their children, if either of them should predecease her.

[35]After the hearing there was some discussion between the parties as to whether it would be in Miriam’s best interests for an application to be made to the court for an order authorising the appointment of the partners in Robinson & Allfree as executors of her will to avoid a situation of stalemate between Malcolm and Georgina after her death.

The law relating to the appointment of a deputy

[36]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.

[37]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)).

[38]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.

[39]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.

[40]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.

[41]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;

(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.

[42]Another reason for preferring to appoint a family member as deputy, rather than a professional, is the cost involved. Most family members act gratuitously, whereas professional deputies charge for their services. In Re DT

[2015] EWCOP 10

, I discussed the costs of a panel deputy from paragraph 50 onwards and concluded in paragraph 62 that:

“It is likely, therefore, that in this case, a panel deputy’s costs would be roughly £6,100 during the first year of appointment, and approximately two thirds of that sum in the second and subsequent years.”

Decision

[43]I agree with the Public Guardian that the appointment of Georgina to act as a joint attorney with Malcolm would be untenable. They haven’t spoken to each other in any meaningful way for thirty years. Temperamentally, they are as different as chalk and cheese. There is no rapport between them, and every minor decision would give rise to a conflict. There would be deadlock.

[44]So, that leaves us with Georgina’s alternative application to remove Malcolm as deputy and to appoint an independent professional deputy to act in his place.

[45]In several judgments in the past I have referred to the decision of the Court of Appeal of New South Wales in Holt v Protective Commissioner (1993) 31 NSWLR 227, in which the lead judgment was given by the President, Michael Kirby. In essence, he held that an application for the removal of a deputy does not invoke quite the same discretion as the initial appointment of a deputy. As with any application, it is necessary forensically for the party seeking a change in the status quo to show some reason why the court should make such an order. The abiding rule in the exercise of powers under the legislation is the achievement of best interests of the protected person and, where it is shown that a deputy is incompetent or has acted improperly or unlawfully, the court may terminate his appointment and appoint another deputy.

[46]The circumstances in which the court can 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.”

[47]Georgina has failed to discharge the burden of satisfying the court that Malcolm has behaved in a way that has contravened his authority or is not in Miriam’s best interests, or that he proposes to behave in such a way.

[48]As the Public Guardian confirmed, Malcolm has consistently provided reports and other evidence, whenever he has been asked to do so, supporting his actions as deputy throughout his deputyship. He has worked in a satisfactory manner with the professionals who are responsible for providing or funding Miriam’s care and has made well-informed decisions. The Public Guardian has no concerns with his actions to date in the management of his mother’s property and affairs. Furthermore, the zero rapport between Georgina and Malcolm has not interfered in any way with the proper administration of Miriam’s estate during the last five years.

[49]I see no point in upsetting the applecart. There would be no benefit whatever to Miriam in allowing Georgina’s application. It is unlikely that the service provided by a professional deputy would be any better than the service currently provided by Malcolm, and the appointment of a professional deputy would incur an unnecessary expense to Miriam’s estate of several thousand pounds a year.

[50]Accordingly, I dismiss the application.

[51]I am not going to make any order for costs at this stage. I await submissions from Georgina’s legal advisers as to why they consider that their costs should be paid by Miriam rather than by Georgina, when the application was never likely to be in Miriam’s best interests from the outset. Georgina was given a costs warning in the order of 3 July 2015, which stated that, “The court reserves the right to depart from the usual order for costs in this matter if the circumstances so justify.”

order

(a) appointing Malcolm to be Miriam’s deputy for property and affairs;

(b) authorising him to sell Miriam’s house in Birchington; and