GMP, Re [2015] EWCOP 67

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 12620297

[2015] EWCOP 67

COURT OF PROTECTION

Date 19 October 2015

MENTAL CAPACITY ACT 2005

First Avenue House

42-49 High Holborn

London WC1V 6NP

Before

SENIOR JUDGE LUSH

Between

KSApplicant

JRRespondent

Re GMP

Chloe Smith of Martin Searle Solicitors for applicant

The respondent in person for in person

Hearing Hearing date: 6 October 2015

JUDGMENT

Senior Judge Lush:

[1]This is an objection to an application for the appointment of a deputy for property and affairs.

The background

[2]These proceedings relate to Gillian, who was born on 14 December 1951 and used to be a piano teacher.

[3]She lives in a flat in Portsmouth and receives twenty-four hour care from a team of carers employed by Aster Care Limited.

[4]She is married to Alan, who also lives in Portsmouth, though not currently in the same flat as Gillian. He was formerly a structural engineer. He is 66 and has had Parkinson’s disease for the last twenty years. Gillian was his primary carer until she fell ill and was admitted to hospital in March 2014. He also receives care from Aster Care.

[5]From 1980 Alan and Gillian lived in Canada - initially in Calgary, and later in Halifax - and returned to live in England in December 2012. Alan had been brought up in Portsmouth and that is where they decided to settle in their retirement.

[6]They have two children:(a) Kate, who was born on 10 April 1978 and lives in London. She is a compliance officer and is the applicant in this matter; and

(b) James, who was born in Calgary on 16 January 1982 and lives in Toronto. He is a senior software design engineer.

[7]Gillian has two younger sisters:(a) Jane, who is 61 and lives in London. She has a doctorate and formerly taught English and social sciences. She is the respondent in these proceedings; and

(b) Jacqui, who is 59 and lives in Perthshire.

[8]Her mother, Mavis, is 86 and lives with Jane.

[9]Gillian has had fronto-temporal dementia since 2012.

[10]She was compulsorily detained in St James Hospital, Portsmouth, under sections 2 and 3 of the Mental Health Act 1983 from 31 March 2014 until January 2015. She briefly returned home on leave for about a week in September 2014, but her dementia caused her to interfere with Alan’s care package, which put both him and her at risk.

[11]She has assets in England worth about £125,000, which consist of: Half share of her flat in Portsmouth less the mortgage 105,000 Half share of cash in bank accounts 10,000 Personal chattels 10,000 £125,000

[12]She has assets in Canada worth nearly three times as much. They comprise: Half share of sale proceeds of the property in Halifax, Nova Scotia 267,500 Half share of cash in bank accounts 190,000 £457,500

[13]On 17 June 2011 Gillian made a will in Nova Scotia, in which she appointed her husband, failing whom, her children to be her executor, and gave everything to her husband, failing whom, her children in equal shares.

[14]On the same day, 17 June 2011, she executed “an enduring power of attorney within the meaning of the Powers of Attorney Act (Nova Scotia) and similar laws in other provinces of Canada and other jurisdictions,” in which she appointed her husband to be her sole attorney, failing whom, her children.

[15]Gillian’s Canadian assets are currently managed by Legacy Private Trust in Toronto by way of an agency agreement with the attorneys, Kate and James.

[16]On 27 November 2014, Kate applied to the Court of Protection to be appointed as Gillian’s deputy for property and affairs. She said:

“My mother has unfortunately fallen ill at a relatively young age and as she has substantial assets both here and in Canada it is important that someone is appointed to manage her property and affairs. My father is also not very well, so not in a position to act and their only other child (my brother) lives in Canada.”

[17]Irwin Mitchell LLP Solicitors, London EC1, initially acted for Kate in connection with the application. However, on 4 February 2015, she instructed Chloe Smith of Martin Searle Solicitors, Brighton, who had been dealing with Mental Health Act issues relating to Gillian’s compulsory detention in hospital and was entirely familiar with the case.

The objection

[18]Gillian’s sister, Jane, is a litigant in person. On 4 February 2015 she filed an acknowledgment of service, in which she objected to Kate’s application and suggested that, “another deputy be appointed, if necessary a professional deputy or a director of social services.”

[19]The acknowledgment of service was accompanied by a witness statement, also dated 4 February 2015, in which Jane said that:(a) In 2011 Kate was not always forwarding correspondence to her mother.

(b) On 2 July 2013 Kate went to her parents’ flat with a solicitor with a view to getting them to create Lasting Powers of Attorney, but they refused to do so.

(d) As a youngster Kate deceived her parents in various ways. For example, she failed to attend college, whilst lying to Gillian that she was attending, so as to continue to receive an allowance.

(e) Kate was also very anxious to conceal her first marriage from her second husband.

(f) “Gillian frequently made it clear to me over many years that she would not want Kate to be in charge of her affairs. … I understand that the court will normally take into account the previous wishes of the protected person.”

(g) “I feel it will be very difficult, and probably distressing, for Gillian to be able to talk to Kate about property and financial affairs given her strongly held views that it is inappropriate for Kate to do this.”

(h) “I should say that in the past Kate has not seen Gillian on a regular basis when both she and Alan have been living in this country. … Indeed I understand that Gillian and Kate were effectively estranged from 2001 to 2014.”

Order

[20]On 7 April 2015 District Judge Michael Payne made an order requiring:(a) the parties to inform the court by 5 May whether they had managed to reach a mutually acceptable agreement by way of mediation, failing which;

(b) the respondent, Jane, to file a witness statement by 2 June;

(d) the matter to be referred back to a judge after 1 July 2015. Witness statements

[21]On 1 June 2015 Jane signed a second witness statement, in which she said:

“Unfortunately I continue to feel I must continue my objection to the appointment of Kate as deputy for all the reasons I have stated.”

[22]On 24 June 2015 Gillian’s son, James, made a witness statement, in which he said:

“I support my sister’s application to be appointed as our mother’s deputy. There are two major reasons for this. The first reason ... is that I believe it is what our mother would want. … The second reason … is that I think Kate has done an excellent job on both our parents’ behalf in the UK. I think on this account alone she has demonstrated a willingness and aptitude that I don’t think would be matched by anyone else. We have both had to engage, with increasing amounts of involvement, in aiding our parents over the past several years. We consult on major decisions, although we have divided the actual labour between countries. I do the necessary leg-work in Canada, while she does the same in the UK. Since our parents decided they wanted to return full-time to the UK, this has meant the majority of the burden has fallen on her shoulders, and she has done an excellent job.”

[23]On 26 June Gillian’s husband, Alan, made a witness statement in which he said: 1. I fully support Kate’s application to be appointed as Gillian’s deputy. I believe that Kate is the right person to be appointed. 2. Kate is already handling Gillian’s financial affairs in Canada with my son, James, so she already knows exactly what Gillian’s finances are. Kate knows exactly what to do and is aware of Gillian’s situation. 3. I do not have any concerns about Kate’s ability to act in Gillian’s best interests. Kate has done a good job and will carry on helping Gillian. 4. I definitely do not want Jane to be appointed as Gillian’s deputy. I want Kate to take on this role. Gillian and I have joint accounts and I do not want Jane to have access to our accounts. 5. Given the option between Kate and another person dealing with Gillian’s property and financial affairs, I think Kate is the right person. I do not want anyone else involved in our financial affairs apart from Kate and my son James. They are already doing a good job as attorneys of mine and Gillian’s Canadian powers of attorney.

[24]On 26 June 2015 Kate made a second witness statement.

Order

[25]The matter was referred to me and on 10 August 2015 I made an order listing the application for hearing on Tuesday 6 October 2015 with a time estimate of one and a half hours. I also requested the parties to file and serve any further witness statements by 25 September. Further

Witness statements

[26]On 24 September 2015 Jane filed her third witness statement, which was accompanied by five character references written by friends and former work colleagues confirming that Jane is, for example, “a person of great integrity” and “honest and straightforward, loyal and reliable, always offering care to those she holds dear.”

[27]On 25 September 2015 Kate made her third witness statement, in which she said: 1. I believe that I would be an appropriate deputy to manage my mother’s property and financial affairs. I do not believe that Jane has provided valid reasons or evidence to suggest that I am unsuitable. 2. My solicitors contacted Jane on 11 September 2015 by e-mail and post asking if she wished to attempt to resolve the matter by mutual agreement or by way of mediation. Jane said that she ‘might’ consider mediation but did not indicate that she wished to pursue this option further. 3. I refer to a letter from Martin Searle Solicitors to Portsmouth City Council and the e-mail response from Tony Putnam, Senior Solicitor Advocate, dated 9 February 2015. Portsmouth City Council (‘the Council’) has no objections to my application and has deemed it ‘logical’ that I am appointed as deputy. The council has been aware of my actions taken as my mother’s nearest relative when she was detained under s. 3 Mental Health Act 1983. 4. I refer to an e-mail from my mother’s allocated social worker, Adam Hipkin, who supports my application to be appointed as deputy and who comments that I am a ‘strong advocate’ for my mother. Mr Hipkin also comments that he is assured that I will continue to work with the Council and Jane in future. 5. The Council has also requested that I make an application to be appointed as my mother’s deputy for her welfare, as well as for her finances. I have decided to await the outcome of these proceedings before submitting this application, as my solicitors have made me aware of the court’s general reluctance to make welfare deputy orders. However, should the Council urge me to make this application so that the Council itself does not apply to be my mother’s deputy, I will do so as I firmly believe that I am able to act in my mother’s best interests. 6. Although Jane objects to my application, should the court consider it appropriate to appoint me as deputy, I would like to assure the court that any issue Jane has with me would not interfere with the administration of my mother’s property and financial affairs. Jane has no dealings with my mother’s property and affairs and, so far, my brother and I have managed to deal with matters despite the complex trust situation and the cross-border issues in transferring money. As joint attorney for my mother’s Canadian property and affairs, being appointed as her deputy would actually make it easier for all parties involved to deal with her affairs and this would be positive for my mother. 7. I do not believe that it would be cost-effective or in my mother’s best interests for my mother’s affairs to be managed by a panel deputy or otherwise. Whilst I appreciate that this is possible, any other deputy would have to liaise with my brother and I on numerous matters, as we are so involved in our parents’ affairs both in terms of their health and welfare as both require complex care and support packages, and in terms of their cross-border financial and property affairs. 8. To date, and notwithstanding my heavy involvement in the drafting of my mother’s care plan, my mother is happy and well. She is living in her own apartment, very close to her husband, and they are able to see each other regularly. I have assisted my father in changing his care provider to the same as my mother’s in order to work towards a potential future where they can live together again. I firmly believe that I have acted in my mother’s best interests and that I would continue to do so if appointed as her deputy.

The hearing

[28]The hearing took place on Tuesday 6 October 2015 and lasted exactly an hour and a half. It was attended by:(a) Chloe Smith of Martin Searle Solicitors, accompanied by Kate; and

(b) Jane, who was accompanied by her husband.

The law relating to the appointment of a deputy

[29]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.

[30]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)).

[31]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.

[32]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.

[33]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.

[34]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.

[35]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

[36]There is a conflict between James’s evidence and Jane’s as to what Gillian’s present wishes and feelings are, or might be, regarding this application.

[37]James said:

“I support my sister’s application to be appointed as our mother’s deputy [because] I believe it is what our mother would want.”

[38]Jane, however, said that:

“Gillian frequently made it clear to me over many years that she would not want Kate to be in charge of her affairs. … I understand that the court will normally take into account the previous wishes of the protected person.”

[39]On balance, I prefer James’s evidence to Jane’s.

[40]Section 4(6)(a) of the Mental Capacity Act requires me to “consider, so far as is reasonably ascertainable, the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity).”

[41]In this case, we have two relevant written statements, Gillian’s will and her Canadian enduring power of attorney, both of which were executed on 17 June 2011. She appointed her husband, Alan, to be her executor and attorney, failing whom, her children. Alan is no longer able to act on her behalf and, as James lives and works in Canada, Kate is the ‘logical’ choice (as Tony Putnam of Portsmouth City Council put it) to manage Gillian’s property and financial affairs in England.

[42]While she still had capacity, Gillian selected Kate to be a substitute attorney and executor. Yet, Jane claims that Gillian was “effectively estranged” from Kate at that time (2011) and had “strongly held views that it [was] inappropriate for Kate” to act in those roles. I don’t believe her and, even if there is an element of truth in what she says, Gillian had obviously changed her mind about Kate at least four years ago.

[43]Section 4(7)(a) of the Act requires me to “take into account, if it is practicable and appropriate to consult them, the views of anyone engaged in caring for the person or interested in his welfare. …. As to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6).”

[44]In this case we have the views of Gillian’s husband, Alan, her son, James, and her allocated social worker, Adam Hipkin, all of whom support Kate’s application to be deputy for property and affairs.

[45]Jane has differing views, of course, but in my opinion her views are outweighed by those of Gillian’s husband, son, and social worker. Her criticisms of Kate are largely historical and the impression I formed of Kate, both from the written pleadings and her conduct at the hearing, was light years removed from the deceitful, manipulative character depicted in Jane’s pen portrait of her.

[46]Kate has a good working relationship with Gillian’s carers, medical team and social services, and has been instrumental in developing her mother’s care plan. She also has an excellent relationship with her father and brother, and I believe her brother, James, when he says that they have both been compelled “to engage, with increasing amounts of involvement, in aiding our parents” in recent years and that Kate “has demonstrated a willingness and aptitude” that is unequalled, and that “she has done an excellent job.”

[47]Having regard to all the circumstances, I intend to appoint Kate as Gillian’s deputy for property and affairs. I can see no impediment to her appointment and I am satisfied that it would be in Gillian’s best interests. The appointment of a professional deputy or even the local authority is unnecessary, and would be disproportionate and would infringe Gillian’s Article 8 rights.

[48]I also propose appoint Kate as Gillian’s deputy for personal welfare. I realise that she hasn’t even applied yet to be appointed as a personal welfare deputy, and was awaiting the outcome of these proceedings before doing so, but section 16(6) of the Act confers a wide discretion on the court by providing that:

“Without prejudice to section 4, the court may make the order, give the directions or make the appointment on such terms as it considers are in P’s best interests, even though no application is before the court for an order, directions or an appointment on those terms.”

[49]Kate was correct when she referred to “the court’s general reluctance to make welfare deputy orders”, but such an order would be expedient in this case. Gillian became incapacitated with dementia when she was only 60. Mainly due to Kate’s advocacy on her behalf, Gillian is still living in her own flat, and is supported by a team of carers around the clock. Occasionally, the need will arise for an executive decision to be made on her behalf on a personal welfare matter. For example, at the hearing we were told of a recent altercation with Gillian’s carers when a couple of visitors turned up unannounced at her flat with the intention of taking her out for the afternoon. Portsmouth City Council believes there is a pressing need for a personal welfare deputy in this case and intends to apply itself, if Kate doesn’t beat the Council to it. By making the appointment under section 16(6) I consider that I am giving effect to the overriding objective by dealing with the matter expeditiously and proportionately and by saving expense.