FH, Re [2016] EWCOP 14

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.

[2016] EWCOP 14

Case No 12593830

COURT OF PROTECTION

Date 1 March 2016

MENTAL CAPACITY ACT 2005

First Avenue House

42-49 High Holborn

London WC1V 6NP

Before

SENIOR JUDGE LUSH

Between

ARRApplicant

SHSRespondents

SHRespondent

Re FH

Shamim Ali of Addison & Khan Solicitors for Applicant

Alison Gerry, instructed by Solomons Solicitors for Respondents

Hearing Hearing date: 23 February 2016

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 Fahmida, who was born in Lahore on 5 March 1946. When she was 19 she married and came to England. Her first husband worked for London Transport. He died in 1994, aged 50. She ran a newsagent’s and grocery store.

[3]She has two children from her first marriage, namely:(a) a son, Suhail, who is 49, works in the financial services industry and lives in Spain; and

(b) a daughter, Shama, who is 41, lives in Ilford and is a senior teaching assistant and family support worker.

[4]She had another son, who was killed in a car crash in 1991, when he was 20.

[5]Fahmida lives in the London Borough of Redbridge with her second husband, Abdul, whom she married on 22 October 2001. He was born in Jhelum, Pakistan, on 2 August 1962 and came to England in 1998. He used to run a dry-cleaning business but gave up work so that he could care for Fahmida on a full-time basis.

[6]She was diagnosed as having Alzheimer’s dementia in 2006, when she was 60. It has been suggested that a contributory factor may have been a traumatic brain injury she suffered in a hit-and-run incident in 1977. She was in a coma for six months.

[7]The house is in her sole name. It is worth about £350,000 and at the time of the application for the appointment of a deputy there was a mortgage, on which there was a balance of £10,000.

[8]Apart from the house, the only capital asset she has is a joint bank account with her husband, on which there was a balance of £255 at the time of the application.

[9]Her income is roughly £14,250 a year, and consists of:(a) state retirement pension (£5,325);

(b) Disability Living Allowance (£4,936); and

[10]On 10 November 2014 Abdul applied to the court to be appointed as Fahmida’s deputy for property and affairs. His application was ambivalent because in places he said that he was also applying to be appointed as her personal welfare deputy, whereas on one page he had specifically crossed out a reference he had made to a personal welfare appointment.

[11]Initially, he was an applicant in person and in section 6 of the application form (“About attending court hearings”) he stated:

“Abdul will require an interpreter who speaks Urdu fluently and can translate anything said to him in English to Urdu.”

[12]Five months later, on 12 April 2015, Addison & Khan Solicitors, 325-331 High Road, Ilford, London IG1 1NR wrote to the court saying that they were now acting for Abdul.

The objections

[13]Solomons, Solicitors, 16 Finchley Road, London NW8 6EB act for Fahmida’s children, Shama and Suhail, who are respectively the first and second respondents in these proceedings.

[14]On 21 April 2015 Shama filed an acknowledgment of service, in which she objected to the application and said that:

“The application relates to my mother Fahmida. I do not agree that Abdul should be appointed to manage her affairs. He initially moved in as her lodger. We later discovered that he married my Mum. I do not feel that my mother’s welfare is his motivation for wanting to be her deputy. In addition to that he is uneducated, unable to speak English, and unfamiliar with systems in the UK. I propose that I am appointed my mother’s deputy. Should this matter not be dealt with administratively, I request it is listed for a hearing.”

[15]The acknowledgment of service was accompanied by a witness statement, in which Shama said:

“After my father passed away in October 1994 it was both my mother and I residing at the property until March 1999, when I got married. Later that year my mother took in Abdul as a lodger. After Abdul entered my mother’s life, I feel the mother and daughter relationship was taken away. I have not been able to visit my mother freely. All visits were like an appointment with Abdul giving permission to me to visit. He would also sit in the same room during my visit. My children have not had the experience of having a grandmother. I feel that, had she been able to spend more time with them on a free basis, the dementia would not have set in as quick as it did. We moved from Forest Gate to Ilford to be closer to Mum. Unfortunately, I’ve seen less of my mother over the last two years than I had done before. On previous occasions I would receive copies of letters from the hospitals/doctors regarding my mother’s health. This was stopped by Abdul. Now I am not aware of what medications my mother is on or of all of her symptoms. The odd times I have received a call from Abdul is when my mother has been taken into hospital, otherwise all I am told is that she is fine. After getting married, my mother told me to keep all the house keys so that I could have access all the time. Without any discussions Abdul changed the locks and told me I didn’t need a copy. I should like the court to consider my statement and propose a different order in which I am a part of.”

[16]On 21 April 2015 Fahmida’s son, Suhail, filed an acknowledgement of service opposing the application for the same reasons as his sister.

Orders

[17]On 2 July 2015 I made an

[18]On 17 September both sides asked for the hearing to be adjourned, because neither of them was fully prepared yet, and I agreed to vacate the hearing.

[19]On 21 September I made an order for a section 49 report to be prepared by the Public Guardian. I asked for his views on the following matters:(1) Whether the Public Guardian considers that a person who is unable to understand and speak the English language can be considered suitable for appointment as a deputy for property and financial affairs.

(2) Whether he considers that someone who is illiterate and unable to read the English language, or any other language, can be considered suitable for appointment as a deputy for property and affairs.

(3) Whether the response to the above questions would be the same in respect of an application to be appointed as a personal welfare deputy.

(4) What an acceptable minimum would be in terms of literacy and numeracy skills for appointment as a deputy for property and affairs.

(5) What an acceptable minimum would be in terms of literacy and numeracy skills for appointment as a deputy for personal welfare.

(6) The extent to which support in performing the deputyship functions may be acceptable.

(7) The extent (if any) to which Abdul may lack the essential skills required of a deputy for property and affairs or personal welfare.

(8) Whether Fahmida is capable of expressing any wishes or feelings in respect of this application.

[20]On 11 December 2015 the Public Guardian duly filed his section 49 report, in which he said that “on 25 November 2015 a Court of Protection General Visitor saw Fahmida at her home address along with Abdul and his niece, Adeela, and an Urdu interpreter.”

The General Visitor’s report

[21]The Visitor, Christine Gaukroger, reported that Fahmida:(a) receives one hour professional care four days a week funded by the London Borough of Redbridge.

(b) does not have capacity to express her wishes and feelings regarding: (i) Abdul’s application to be her deputy. (ii) who she would like as an alternative, if not Abdul. (iii) her children being able to visit when they want. (iv) Abdul providing her with updates on her health and medication.

[22]The Visitor reported that Abdul:(a) is Fahmida’s main carer.

(b) buys things as needed.

(c) advised that respite care had been offered but he had refused it as it would mean Fahmida going into residential care and that was not in keeping with their culture.

(d) applied to become deputy because Fahmida has reached the point where she can no longer be supported to make decisions and he has had difficulty dealing with organisations without [a Lasting Power of Attorney] or deputy order.

(e) has been fighting for her to receive Disability Living Allowance.

(f) said that Fahmida has not made a will since they have been married and he does not know whether she made one previously.

(g) when asked about future plans, advised that the house is in Fahmida’s name. He is not concerned about the house, and it is more important to look after Fahmida because he cares about her.

[23]As regards Fahmida’s daughter (Shama) and son (Suhail), the Visitor reported that Abdul said that:(a) he understands from a solicitor’s letter that Shama has Fahmida’s jewellery. He was unsure of the value, because of the fluctuation in gold prices, but thought it was around £10,000.

(b) he thinks it important that Fahmida’s children visit now, when she is helpless.

(c) he took Fahmida to visit her daughter and grandchildren at Eid, but she did not stay very long before she was brought back again.

(d) Shama borrowed £5,000 in January 2012 but has repaid the loan.

(e) Suhail put pressure on him to sign over Fahmida’s house, but Abdul could not, as it was not his to sign over.

(f) Shama suggested that Fahmida’s house was transferred to her so she could then give Fahmida and Abdul some money, after raising a loan using the house as security. Fahmida could still communicate at the time and said that it was her house. She did not want to sell it and did not want to transfer the property to either of her children because she was concerned that they would not treat her with respect.

[24]The Visitor said that Abdul explained that:(a) in their culture, once Fahmida’s husband died, she was not supposed to marry again.

(b) when her first husband died, Suhail did not come back from America and Fahmida found this disrespectful.

(d) eventually a £40,000 loan was secured on the house for Suhail. Repayments were made between 2003 and 2007 but then stopped with Suhail refusing to continue repayments, after which he stopped calling.

(e) Abdul approached Fahmida’s family but no-one would help.

(f) in the end Abdul went to his own family and borrowed the money to repay the mortgage to avoid the bank taking them to court.

(g) since 2008 Abdul has paid all the interest on the mortgage; this month (November 2015) was the last payment.

(h) Shama and Suhail do not call their mother and never ask about her, and Abdul does not really understand their attitude.

[25]The Visitor asked the interpreter to translate for Abdul the respondents’ objections to his application, and in response he said that:(a) what was being said was baseless and not truthful.

(b) Shama could come anytime and look after her mum.

(c) he has already been looking after Fahmida for a number of years, and his life has completely changed from ten years ago, when he had a normal life.

(d) hospital and medical appointments originally went to Shama, but appointments got missed because she did not pass them on, so he had them sent to the house instead.

(e) he had changed the lock on the door because the house has been double glazed, and had a new door fitted with a new lock, but the family have never asked for a new key.

[26]The Visitor reported that:(a) her main concern was that Fahmida seemed somewhat distressed because of her dementia.

(b) she does not think there is a lot of cash to buy-in extra care for Fahmida, but during the visit Abdul took a call from their social worker, who telephoned to advise that more help for Fahmida had been agreed in order to support Abdul.

(c) Abdul did not agree with the statement that Fahmida’s welfare was not his motivation for becoming her deputy, when he is her main carer with minimal social services help.

(d) during the visit she showed Abdul the deputy report form, the deputy fee remission application form, and the Code of Practice to the Mental Capacity Act. She explained to him that these were the sorts of things he would have to understand and complete as a deputy.

(e) she advised Abdul that there would be an expectation that he would keep Fahmida’s funds in a separate bank account rather than the joint account they currently have. After initial objection, Abdul accepted the need to change and said that, if the court gave him permission to be deputy, he would separate the accounts.

(f) when addressing the issue of Abdul’s ability to read and write English and be in a position to complete forms, Abdul maintained his position that he has been managing for ten years; applying for Disability Living Allowance, protecting the house for Fahmida from attempts by her children to acquire some of it, against her wishes, and managing to pay the mortgage when Suhail stopped making repayments.

(g) Abdul conceded that the reason he can do what he does is because he relies on his niece Adeela to complete the paperwork. She completed his deputyship application and helps with other matters which require a good command of the English language.

(h) Abdul can speak English but, for official purposes and in order to ensure his meaning is understood, an interpreter is necessary. His niece will do that as well.

[27]After obtaining information from Abdul, without his niece Adeela being present, the Visitor spoke to Adeela, who confirmed that she had completed the deputyship court papers and regularly helps her uncle. The Visitor showed Adeela the OPG forms and the Code of Practice, and Adeela confirmed that she was willing to help Abdul.

[28]The Visitor spoke to the interpreter before the visit to explain why the visit was taking place and what the roles of the Court of Protection and the Office of the Public Guardian were. After the visit, the Visitor reported that the interpreter felt that Abdul was “open and honest, but that in their culture it was better to say you could do something, even if you could not, as a matter of honour or saving face.” However, the interpreter did not believe that Abdul wanted to understand or co-operate when he was shown the sorts of documents he would have to manage as deputy. The interpreter thought that Abdul was more interested in telling the Visitor why he wanted to be deputy but by the end of the visit he acknowledged what the Visitor had told him.

[29]The Visitor concluded that:(a) if what she was told was accurate, there is very little by way of savings, and so Fahmida’s affairs ought to be fairly straightforward.

(b) if Abdul was not appointed deputy, the home circumstances would be problematic, as having an ‘outside person’ have control of her finances could upset this balance to her detriment.

(c) Abdul is ensuring that Fahmida’s care is met as best he can, and the enormity of this task should not be underestimated.

(d) the value of the care, attention and emotional input Abdul gives to Fahmida should not be underestimated as she cannot be easy to care for given the effect that dementia has on her needs.

(e) given the reality that Abdul is Fahmida’s main carer 24 hours a day in her own home, this ought to have a bearing on the decision the court will make and, in her view, it should carry considerable weight.

(f) Abdul already has a strategy in place to help him with the deficiency in his English, which, on the face of it, is tried and tested.

(g) Abdul is acting in Fahmida’s best interests.

London Borough of Redbridge

[30]On 10 November 2015 Melanie Lewis of the Office of the Public Guardian sent an email to the London Borough of Redbridge to check whether Fahmida and Abdul were known to them and whether any safeguarding concerns had been raised. She received a phone call and an email from a social worker in the mental health team at Redbridge, who said that:(a) there are no records of any safeguarding concerns being raised with Redbridge.

(b) he has known both Fahmida and Abdul since 2012 and has no concerns about either of them.

(d) Abdul is her main carer.

(e) Abdul is the obvious person to manage Fahmida’s financial affairs.

(f) the London Borough of Redbridge has no objection to Abdul managing Fahmida’s financial affairs.

The Public Guardian’s section 49 report

[31]In the section 49 report dated 11 December 2015, the Public Guardian gave exactly the same answer to questions (1) to (5), set out in paragraph 19 above, on a prospective deputy’s ability to speak English and literacy and numeracy skills. In each case he said:

“The Public Guardian is unable to comment on this in a general sense and is of the opinion that it will depend upon whether a prospective deputy is able to satisfy the court that he has the ability to make best interest decisions for property and financial affairs, understands what acting as a deputy entails, and that he has suitable arrangements in place enabling the fulfilment of a deputy’s obligations in terms of interfacing with third parties, record keeping and reporting to the Public Guardian.”

[32]Additionally, in his response to question (1) – “Whether the Public Guardian considers that a person who is unable to speak the English language can be considered suitable for appointment as a deputy for property and affairs” - the Public Guardian said:

“The Public Guardian would have concerns about the impact on P’s funds if a deputy seeks to use a professional interpreter. The Public Guardian would also have concerns about the use of a non-professional interpreter, such as a friend or family member, in case they had their own agenda or had a lack of understanding about what they were being asked to translate.”

[33]The Public Guardian’s reply to question (6) – in which I asked for his views on “the extent to which support in performing the deputyship functions may be acceptable” – was as follows:

“The Public Guardian is unable to comment on this in a general sense and is of the opinion that, if the court appoints a person suitable to be appointed as deputy, for either property and affairs or personal welfare, the Public Guardian will provide support to enable that deputy to perform the deputyship functions. The Public Guardian’s position is that if, after a deputy’s appointment, the Public Guardian is of the opinion that, despite support being provided, the deputy is not able to fulfil the deputyship functions, the Public Guardian will consider referring to the court a decision on the future of the deputyship.”

[34]In response to question (7) – “the extent (if any) to which Abdul may lack the essential skills required of a deputy for property and affairs or personal welfare” – the Public Guardian said:

“Although the Court of Protection General Visitor advised that Abdul’s command of the English language is limited, the evidence shows that he has managed to put strategies in place to help him, and has managed to look after Fahmida’s affairs for a number of years now. Abdul’s niece confirmed that she provides the support he needs to manage Fahmida’s affairs. The Court of Protection General Visitor made Abdul’s niece aware of what being a deputy involves and the niece confirmed that she is prepared to continue supporting Abdul and would also continue to do so is he was appointed Fahmida’s deputy. Fahmida and Abdul receive support from a social worker for the Mental Health Team at the London Borough of Redbridge and their social worker advised he has no concerns about Abdul managing Fahmida’s affairs and thinks Abdul is the obvious choice. Whilst the Public Guardian might have concerns about a family member being used as an interpreter for a deputy in this case, there is no evidence to support any concerns in respect of Adeela and the support she has provided interpreting for Abdul to date. The Public Guardian’s position is that he has no objection to Abdul being appointed as Fahmida’s deputy for property and affairs or personal welfare.”

[35]Finally, the Public Guardian’s response to question (8) - “whether Fahmida is capable of expressing any wishes or feelings in respect of this application” – was that:

“The Court of Protection General Visitor advised on 3 December 2015 that Fahmida is not capable of expressing any wishes or feelings in respect of this application. Her lack of capacity has also been confirmed by her social worker from the Mental Health Team at the London Borough of Redbridge.”

The respondents’ position statement

[36]The respondents’ solicitors, Solomons, instructed Alison Gerry, of Doughty Street Chambers, to represent them at the hearing. On 22 February 2016 Miss Gerry filed a position statement on their behalf in which she said:

“It is clear from the report of the Public Guardian that Abdul is not able to act as a deputy without the assistance of an interpreter. The costs of an interpreter would be a drain on Fahmida’s income and finances and it would appear that the Public Guardian has no objection to Abdul being appointed as deputy for property and affairs or personal welfare on the basis of the support currently in place for Abdul provided by his niece, Adeela. It is submitted that in these circumstances, before deciding whether to grant the application and make Abdul Fahmida’s deputy (whether property and affairs alone, or also personal welfare), the court needs to be satisfied in respect of the permanence and reliability of the support Adeela provides. Currently there is no evidence or information regarding Adeela. For example, how old is she, where does she live, is she married, does she have children, what are her work and other commitments, how much support does she provide – is it on a regular basis or ad hoc? Also, it is submitted that the court will need to know what plans or strategies are in place should Adeela not be available either in the short term or in the longer term to provide the support she currently does. It is submitted that any order appointing Abdul as deputy to Fahmida will have to have a mechanism by which the matter is returned to court should the current support and interpretation services provided by Adeela no longer be in place. It is clear from the report of the Public Guardian that Abdul requires support in order to act as a deputy for Fahmida. Set out below are the respondents’ proposals should Abdul be appointed as deputy and how any such appointment should be limited. If the following course is followed, it is submitted that the court will not at this stage need to further enquire or determine the factual matters in dispute between the parties. In line with the principle that the powers of a deputy should be as limited in scope as is reasonably practicable, it is submitted that any order making Abdul deputy for property and affairs should not include a power in respect of selling and letting of property, or other assets, and so should include an order that Abdul “must not sell, lease or charge any freehold or leasehold property in which Fahmida has a beneficial interest without obtaining a further authority from the court. It is submitted that not only would such a restriction ensure that the powers conferred are as limited as is reasonably practicable, it will also meet the current concerns raised by Abdul and the reasons behind the application, Abdul is reported by the General Visitor to have stated that “the house is in Fahmida’s name, he is not concerned about the house but it was more important to look after Fahmida because he cares about her.”

It would appear from Abdul’s evidence that he is seeking to be appointed as Fahmida’s deputy for property and affairs in order to deal with organisations such as HMRC and the DWP. These concerns do not require a deputy order that confers powers in respect of Fahmida’s property and assets. Further, Abdul could be made an appointee in order to deal with Fahmida’s benefits. It is submitted that, if Abdul is to be appointed as Fahmida’s deputy for property and affairs the powers conferred should be limited to dealing with day to day finances and not include any power to dispose or otherwise deal with any property rights or assets.”

The hearing

[37]The hearing took place on Tuesday 23 February 2016 and was attended by:(a) Shamim Ali of Addison Khan Solicitors, accompanied by her client Abdul and an Urdu interpreter, Siraj Ahmad; and

(b) Alison Gerry of counsel, and the first respondent, Shama, and her husband.

[38]Abdul withdrew his application to be appointed as Fahmida’s personal welfare deputy and was content for the court to impose a restriction in the order appointing him as deputy for property and affairs that he had no authority to deal with Fahmida’s house.

[39]Although Abdul cannot read English, he is not illiterate and is able to read Urdu.

[40]I asked him for some background information on his niece, Adeela. He said that she was 19 or 20 and had just finished college. She lives locally and, whenever he requires her help, he calls her, though generally speaking he is able to manage without her assistance.

[41]It was decided that there would be a recital in the order appointing him as deputy that Abdul had agreed that Fahmida’s children and grandchildren could have access to her and that Shama could have a key to the house.

[42]I suggested that I would also include in the order a recommendation to the Public Guardian that he sends a Court of Protection General Visitor to see Fahmida and Abdul at least annually for the next three years.

[43]The respondents sought no order in respect of their costs in these proceedings.

The law relating to the appointment of a deputy

[44]One of the principles of the Mental Capacity Act 2005 is 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” (section 1(5)).

[45]Section 4(2) provides that “the person making the determination (as to what is in the best interests of a person who lacks capacity) must consider all the relevant circumstances and, in particular take the following steps.”

[46]In this case, the outcome of taking those steps is as follows:(a) It is unlikely that Fahmida will ever regain capacity (section 4(3)). She has dementia in Alzheimer’s disease with early onset, beginning before the age of 65, which is characterised by relatively rapid deterioration, with marked multiple disorders of the higher cortical functions.

(b) It is neither practicable nor possible to encourage or enable her to participate in the decision-making process because her dementia is too far advanced (section 4(4)).

(c) Her wishes in the past are hard to ascertain (section 4(6)(a)). According to Abdul (at paragraph 23(f) above), Fahmida expressed some concern that her children would not treat her with respect. She has made no written statement that has any bearing on this application.

(d) She is unable to express any present wishes and feelings about the matter (section 4(6)(a)). The Court of Protection General Visitor did try to ascertain them, but without success: see paragraph 21(b) above.

(e) As regards the beliefs and values that would be likely to influence her decision if she had capacity, Fahmida is a Muslim woman and might normally be expected to defer to her husband. However, she has lived in England for fifty years and has defied cultural conventions in the past, when it has suited her to do so (section 4(6)(b)).

(f) As regards the views of others as to what is in Fahmida’s best interests, I have noted the views of Abdul, Shama, and the social worker at the London Borough of Redbridge (section 4(7)).

[47]I summarised the law relating to the appointment of a deputy for property and affairs in paragraphs 34 to 39 of Re DGP

[2015] EWCOP 58

, and have nothing further to add. In that case, other family members objected to an application made by DGP’s daughter to be appointed as her deputy because she lived in Maryland, USA, which they regarded as an impediment to her appointment, just as Fahmida’s children consider Abdul’s illiteracy to be an impediment to his appointment as her deputy.

Decision

[48]The question I have to decide is whether Abdul’s functional illiteracy is of such a degree as to make it impossible for him to manage Fahmida’s property and affairs effectively and in her best interests.

[49]I am loath to underestimate and undermine the importance of basic literacy and numeracy skills, which are generally expected of any candidate who is applying to be appointed as a deputy for property and affairs.

[50]However, I am not convinced that Abdul’s limited ability to speak English, and his inability to read and write English (particularly in his encounters with officialdom) is so great as to warrant not appointing him as his wife’s deputy.

[51]The ability to manage someone else’s property and affairs is similar to the capacity to manage one’s own property and affairs. There are differences, of course, and, if anything, managing someone else’s finances is more onerous than managing one’s own. For example:(a) Usually, you don’t need to keep accounts of how you manage your own finances, but a deputy for property and affairs is expressly required keep bank statements, vouchers, receipts and other financial records and to submit an account annually to the Public Guardian. Attorneys acting under an enduring or lasting power of attorney, although not routinely required to report, are nevertheless expected to “keep accounts of transactions carried out on the donor’s behalf” and “the more complicated the donor’s affairs, the more detailed the accounts may need to be”: Mental Capacity Act Code of Practice, paragraph 7.67.

(b) When managing your own financial affairs, you can make an unwise decision. However, “once the decision-making power shifts to a third party (whether carer, deputy or the court) I cannot see that it would be a proper exercise for a third party decision-maker consciously to make an unwise decision merely because P would have done so. A consciously unwise decision will rarely if ever be made in P’s best interests”: Re P (Statutory Will)

[2009] EWHC 163 (Ch)

; [2009] COPLR Con Vol 906, at paragraph [42] per Lewison J.

[52]The criteria for capacity to manage and administer one’s property and affairs were considered in Masterman-Lister v Brutton & Co.

[2002] EWCA Civ 1889

, in which the Court of Appeal, at paragraph [18], approved two previously unreported decisions, as had Mr Justice Wright at first instance:(a) Mr Justice Wilberforce’s decision in the Chancery Division on 23 March 1962, in an appeal from the Master of the Court of Protection, in Re C.A.F. (1961 No. 2367), to the effect that, when considering a person’s capacity to manage and administer his property and affairs, it is necessary to have regard to all the circumstances, including the complexity and importance of the property and affairs that he has to manage and administer; and

(b) Mr Justice Boreham’s decision in personal injury proceedings in the Queen’s Bench Division in White v Fell, on 12 November 1987, in which he held that the meaning of the expression “incapable of managing his property and affairs” should be construed in a common sense way as a whole. Few people have the capacity to manage all their affairs unaided, and whether they are capable of managing their property and affairs depends on whether they are capable of taking, considering, and acting upon appropriate advice.

[53]The evidence in this case shows that:(a) Abdul is perfectly capable of managing daily living tasks and conducting everyday financial transactions and other business arrangements, and has done so successfully for the last ten years.

(b) He has the ability to make best interests decisions on Fahmida’s behalf, and has been doing so since she ceased to be capable of making decisions for herself in respect of her property and financial affairs.

(c) He understands what acting as a deputy entails and is aware of not only his powers but also the limitations on his powers, and the range of duties and responsibilities he will be taking on. The Court of Protection Visitor took pains to show him the forms he would need to complete and to inform him of the duties and responsibilities described in the Mental Capacity Act Code of Practice.

(d) He has insight and understanding of the fact that he has a problem in respect of which he needs assistance from time to time.

(e) He has the ability to instruct an appropriate adviser (for example, his niece, Adeela, for routine matters, and Shamim Ali and the members of her team at Addison Khan Solicitors for technical matters of a legal nature) with sufficient clarity to enable them to understand the issues and to support or advise him appropriately.

(f) He also has the ability to understand and make decisions based upon such advice as he may receive. He demonstrated this at the hearing by making concessions on issues that that would otherwise have been a stumbling block in his future relationship with Fahmida’s children.

(g) He has suitable arrangements in place to enable him to fulfil his obligations in terms of interfacing with third parties, record-keeping, and reporting to the Public Guardian.

(h) By excluding any dealings with Fahmida’s house from the scope of his authority, there will be relatively little left for him to manage and administer and certainly nothing of monumental complexity or importance.

[54]The court’s function is, wherever possible, to empower rather than disenfranchise and, in my view, it would be preferable to allow Abdul to receive support in carrying out his functions as deputy in a way that is proportionate to his needs, rather than refuse to appoint him. In this case, it is unlikely that someone with first-rate literacy skills would prove to be a better deputy than Fahmida’s devoted husband.

[55]I am satisfied, therefore, that it would be in Fahmida’s best interests to appoint Abdul to be her deputy for property and affairs, and that this course of action is less restrictive than any alternative.

order

(a) requiring an officer of the court to send copies of the objections to Abdul’s solicitors by 17 July;

(b) inviting Abdul to file a response by 14 August;

(d) listing the matter for hearing on Friday 18 September 2015.