A, Re [2016] EWCOP 3

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 95908524

[2016] EWCOP 3

COURT OF PROTECTION

Date 12 January 2016

MENTAL CAPACITY ACT 2005

First Avenue House

42-49 High Holborn

London WC1V 6NP

Before

SENIOR JUDGE LUSH

Between

CApplicant

DRespondent

Re A

Tracey Angus QC, instructed by Hughes Fowler Carruthers for applicant

The respondent in person and unrepresented for in person

Hearing Hearing date: 3 December 2015

JUDGMENT

Senior Judge Lush:

[1]This is a contested application for the appointment of a new deputy for property and affairs and a new trustee.

The family background

[2]These proceedings relate to A, who is 78 and comes from a titled family. Her parents died during the 1980s. She had an older brother, who was killed on active service during the Second World War, and two older sisters - B, who is still alive, and J, who died in 1988.

[3]The applicant is B’s daughter, C, who is 59 and lives in Hammersmith. The respondent is J’s son, D, who is 62 and lives in Camden Town

[4]A has schizophrenia. At the age of 17 she complained of command hallucinations and from 1954 to 1962 she received several courses of electroconvulsive therapy or shock treatment. In 1962 she underwent a frontal leucotomy at The Priory Hospital, Roehampton.

[5]On 15 June 1959, on the petition of her father, the court conducted an inquisition into A’s ability to manage herself and her estate, and on 16 July 1959 the Master of the Court of Protection appointed A’s sister, B, to be the committee of her person and committee of her estate.

[6]Inquisitions became obsolescent when the Lunacy Act 1890 received the royal assent, but they didn’t become obsolete until the Mental Health Act 1959 came into force on 1 November 1960. I suspect that A is the only person still alive who was the subject of a lunacy inquisition and for whom a committee of both the person and the estate was appointed.

[7]B subsequently became A’s receiver and, when the Mental Capacity Act 2005 came into force, she became her deputy for property and affairs.

The proceedings in 2013

[8]In 2012, B, who was then in her mid-eighties, wished to stand down as A’s deputy and on 12 November 2012 her daughter, C, applied to be appointed as deputy in her place.

[9]The application was supported by C’s siblings but was opposed by their cousin, D.

[10]There was a hearing before me on 15 May 2013 and on 28 May 2013 I made an order appointing C as A’s deputy for property and affairs.

[11]Because D’s conduct justified a departure from the general rule for costs in property and affairs cases, I ordered him to pay the entire costs of the proceedings except £7,500 plus VAT, which is what I estimated that the costs would have been if the application had been unopposed.

[12]D applied for permission to appeal my order and the President of the Court of Protection, Sir James Munby, directed that he would hear the application on 19 December 2013.

[13]A few days prior to the hearing before the President, A’s new GP examined her and told the family’s solicitors, Macfarlanes, that in his opinion A now had the capacity to manage her property and affairs.

[14]Accordingly, at the hearing on 19 December 2013, the President gave D permission to appeal the order of 28 May 2013 on two grounds, namely:(a) D’s contention that the court had made an error of jurisdictional fact on 28 May 2013 because A had been capable of managing her property and affairs at that time (‘the jurisdictional ground’); and

(b) D’s submission that the costs order was procedurally unfair and wrong (‘the costs ground’).

[15]The President made directions for A to be examined by a consultant psychiatrist and directed that there be a hearing before him to determine her capacity. He also ordered D not to make any further applications to the court without his written permission.

[16]On 19 February 2014 Hughes Fowler Carruthers, Solicitors, came onto the record in the proceedings for the applicant in place of Macfarlanes, though Macfarlanes continued to assist C with the administration of the deputyship.

[17]Pursuant to subsequent orders of the President, Professor Robert Howard was instructed to examine A and provide an opinion on her capacity to manage her property and affairs.

Professor Howard’s report

[18]Robert Howard is the Professor in Old Age Psychiatry at the Institute of Psychiatry, Psychology and Neuroscience at King’s College London. He is also a Consultant Old Age Psychiatrist with the South London and Maudsley NHS Foundation Trust.

[19]He visited A in her nursing home in Yorkshire on 6 December 2014 and reported that:

“She told me that she still hears voices but wasn’t able to tell me what they have said recently. She told me about her hobby of sending letters and cards to famous people. She was very keen to discuss the Queen and her plans to send a Christmas present that the Queen would appreciate. When I asked what this would be, she replied, ‘Books, make-up and a lollipop.’ She then told me that she wants to send a ‘woolly animal toy’ to David Cameron’s daughter. Mr Cameron is one of the famous people that she is most interested in and she told me that he had proposed marriage to her in the past, despite having a very glamorous wife already. A told me that she had met the Prince of Wales several times and that he was ‘very easy to be with’. She went on to say. ‘He has eighteen women lovers. I wish he liked me’.”

[20]Professor Howard concluded his report as follows:

“In addition to her diagnosis of schizophrenia, A will have neuropsychological deficits that relate to her psychosurgery. Damage to her frontal lobes resulting from the leucotomy could be expected to have impaired her judgment, reasoning, ability to understand the motivation and actions of other people and her ability to make a realistic appraisal of her own strengths and limitations. These deficits can all be seen in patients with chronic schizophrenia who have undergone psychosurgery. A is well orientated in time and place and was able to register my name and retain it until the end of our meeting. Her friendly and agreeable manner and her willingness to agree to any suggestion that is put to her could give a superficial impression that she understands and approves. However, during my assessment she demonstrated no ability to understand and remember what her assets are, what her care and general living needs might be and how they might be met, and she had no concept of the absolute value of money. She is not able to understand how the Court of Protection and her niece could operate on her behalf and in her best interests. Because of her delusional ideas (for example, that David Cameron has proposed marriage to her), her inability to understand the actions of others (for example, fellow patients who stole from her or induced her to pay more than the real value of items) and her extreme suggestibility (I believe that I could have induced her to make over all her assets to me in return for helping her to meet with a celebrity), I consider that A is extremely vulnerable to exploitation and abuse. In terms of the Mental Capacity Act (2005), I would consider that A’s schizophrenia, or a combination of her schizophrenia and frontal lobe damage, have caused a significant impairment of the functioning of her mind and brain. As a consequence of this impairment A is unable to understand, retain and use information relevant to decision-making concerning her property and affairs. I also do not consider that she has capacity to make a valid will since she is unable to recall the assets that comprise her estate, to appreciate the claims of those who might reasonably expect to benefit from her testamentary bounty, and is vulnerable both to extreme suggestibility and to the effects of insane delusions upon dispositions that she might make.”

[21]Following the hearing to determine A’s capacity on 20 January 2015, the President made a declaration that she lacks, and lacked at the time of the hearing before me on 15 May 2013, the capacity to manage her property and affairs, thereby disposing of the jurisdictional ground. The President will hear the appeal on the costs ground and the costs of various other applications in March 2016.

The present application

[22]After only eighteen months as A’s deputy, C now wishes to stand down, and on 15 January 2015 she filed an application seeking an order that Suzanne Jane Marriott, a partner in Charles Russell Speechlys, Solicitors, London EC4, be appointed in her place.

[23]She also made an application for Mrs Marriott, once appointed as deputy, to exercise A’s power to appoint new trustees of certain settlements and appoint herself as a trustee.

[24]A and her sisters had been entitled to entailed interests under a settlement created on their parents’ marriage. In 1978 they converted these entailed interests into outright reversionary interests and assigned the reversionary interests to three new settlements created on 22 February 1978 (‘the 1978 Settlements’). A’s participation in these arrangements was pursuant to an authority given by the court on 1 November 1977.

[25]The power to appoint new trustees of the 1978 Settlements is vested in A. Pursuant to an order made on 6 December 2006 Mathew Pintus of Macfarlanes was appointed as a trustee and pursuant to an order I made on 28 May 2013, C was appointed as a trustee.

[26]On 21 August 2015 the President directed that the applications for the appointment of Suzanne Marriott as both deputy and trustee should be heard by me and, on 28 September, I listed the application for hearing on 3 December 2015 and set out a timetable for the parties to file and serve their evidence.

The hearing

[27]The hearing took place on Thursday 3 December 2015 and was attended by:(a) Tracey Angus QC, who was instructed by Hughes Fowler Carruthers, accompanied by Frances Hughes and Caroline Park of that firm and their client C; and

(b) D, who is a litigant in person.

[28]D sought to adjourn the hearing because:(a) he had not agreed the contents of the trial bundle;

(b) the applicant’s solicitor had served a further witness statement on 19 November 2015;

(c) he had made an application for a committal order in respect of a solicitor with Hughes Fowler Carruthers, which will be heard by the President in March 2016; and

(d) leading counsel for the applicant had filed her position statement only five minutes before the deadline specified in my order of 28 September.

[29]I didn’t consider it would be in A’s best interests for the application to be delayed any longer, and I refused to adjourn the hearing. None of the reasons D put forward justified an adjournment and, as Tracey Angus QC said, “a deadline is a deadline.”

The parties’ submissions

[30]The applicant, C, proposed that Suzanne Marriott should be appointed as A’s deputy for the following reasons:(a) She is an experienced professional deputy. She was a ‘panel deputy’ when the application was made in January 2015. The panel consists of about seventy professional deputies who have been selected by the Office of the Public Guardian (‘OPG’). The court appoints a deputy from the panel when no other suitable person is willing or able to act for someone who lacks mental capacity. Mrs Marriott did not apply for re-selection when the OPG reconstituted the panel between February and May 2015, but Anita Gill, another partner at Charles Russell Speechlys, is still a member of the panel.

(b) She has the necessary expertise to take on the role of professional trustee of the 1978 Settlements when Matthew Pintus retires in the near future, and the existing trustees (B, C and Mr Pintus) wish Suzanne Marriott to be the replacement trustee.

(c) In the interests of reducing the level of professional fees charged to A, it is sensible for the deputy and the professional trustee to be one and the same person.

[31]The respondent, D, opposes the appointment of Suzanne Marriott on the following grounds:(a) She works in London, whereas A lives over 200 miles away in Yorkshire. D suggested that Roger Dixon of Hague & Dixon, Solicitors, York, be appointed but Mr Dixon informed Hughes Fowler Carruthers that he had made it clear to D that he has no desire to be appointed as A’s deputy.

(b) Suzanne Marriott’s appointment is dependent on her being able to charge fees at City of London rates. [The applicant’s response to this is that, although a panel deputy would charge fees at a lower rate, it is anticipated that there will be an overall costs saving to A by the same person who acts as deputy being appointed as a trustee of the 1978 Settlements and by virtue of Suzanne Marriott’s large amount of experience of acting as a deputy].

(c) D claims that the nature of Suzanne Marriott’s legal practice makes her unsuitable, in particular because she is frequently abroad. [Mrs Marriott says that this is simply untrue].

(d) D contends that no appointment should be made until further information is provided about A’s assets. In particular he claims that (i) she owns some land that wasn’t mentioned in the COP1A or in the deputyship accounts and that A was wrongfully deprived of land as a result of transactions entered into many decades ago, and (ii) her income has dropped significantly since 2011/12 and is less than it should be as a result (D claims) of mismanagement of her assets by C and Macfarlanes. [The applicant submits there is no basis for these assertions but, if even there were, it would be all the more reason for appointing an independent professional deputy as soon as possible].

[32]In the week before the hearing, in correspondence with Hughes Fowler Carruthers, Mrs Marriott and the court, D raised two further reasons for opposing Mrs Marriott’s appointment, namely that:(a) she is an expert in ‘tax avoidance’, which, I assume, he regards as morally wrong [Mrs Marriott’s response is that her experience of tax avoidance, as distinct from tax evasion, is no greater than that of any other private client lawyer based in the City of London]; and

(b) she cannot be appointed as deputy because she will be called as a witness to give evidence in criminal proceedings which D claims should be brought against one of the solicitors at Hughes Fowler Carruthers, and this would create a conflict of interests.

[33]D generates an enormous volume of correspondence and, even though most of the points he makes are irrelevant, tiresome and repetitious, his correspondence needs to be read by the recipient, if only to confirm that that is simply hot air. Naturally, Mrs Marriott is concerned about the costs implications for A’s estate if she is required to respond to every item of correspondence or e-mail sent to her by D. Accordingly, the applicant has asked the court to direct that Mrs Marriott need only reply to communications from D that appear to be pertinent to her role as deputy, and that she needn’t reply in relation to any relevant point that he raises more than once.

The legal framework

[34]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.

[35]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)).

[36]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.

[37]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, but there are other, more practical, reasons for choosing a family member.

[38]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.

[39]A further 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.

[40]The judgment of Mr Justice Newey in Re Rodman; Long v Rodman and others

[2012] EWHC 347 (Ch)

; [2012] COPLR 433 is of some assistance in this case, not least because it considers the costs charged by a professional deputy, David Long, who was formerly a partner of Suzanne Marriott in Charles Russell & Co., Solicitors.

[41]Arline Rodman lived in the United States but had considerable assets in England, including a valuable house in Mayfair. She had four daughters and the two older daughters didn’t see eye to eye with their younger sisters. On 5 February 2010 David Long was appointed as Mrs Rodman’s deputy for property and affairs and, almost a year later, on 25 January 2011 Jared Shafer was appointed as the general guardian of her estate by a District Court in Nevada. On 31 May 2011 Mr Shafer applied to be appointed as Mrs Rodman’s deputy in place of Mr Long.

[42]Mr Justice Newey held that it was not in Mrs Rodman’s best interests to make an order removing David Long as deputy because:(a) Mr Long was better qualified than Mr Shafer to act as Mrs Rodman’s deputy;

(b) Mr Shafer’s hostile approach to date did not inspire confidence that he would be an appropriate deputy;

(d) Although Charles Russell’s fees were large, they were ‘not obviously excessive’ (paragraph [26]). In any event, the costs in relation to the deputyship were subject to annual detailed assessment and, whatever questions there might be in relation to costs, they did not require an immediate change of deputy.

Decision

[43]Since 1959 a family member has acted as A’s committee and subsequently as her receiver and deputy. Sadly, because of D’s conduct, no suitable family member is now willing to act as A’s deputy for property and affairs and there is no alternative to the appointment of a professional.

[44]In my judgment, it would be in A’s best interests to appoint Suzanne Marriott as her deputy and as a trustee of the 1978 Settlements for the following reasons.

[45]The checklist in section 4 of the Mental Capacity Act is not tremendously helpful on this occasion. I have no idea of A’s own wishes and feelings about the application, and shall assume that she has no particular views on the matter. According to Professor Howard, “she is not able to understand how the Court of Protection and her niece could operate on her behalf and in her best interests.”

[46]As regards the views of others who are engaged in caring for her or interested in A’s welfare, the respondent, D, has made his views known and they are outnumbered by those of the applicant and her mother and siblings and the professionals at Macfarlanes who have been looking after the affairs of A and other members of her family for decades, all of whom support C’s application.

[47]Few people, if any, are better qualified than Mrs Marriott to act as A’s deputy and trustee. Charles Russell Speechly’s website says that: “Suzanne specialises in cross border and UK tax planning, wills, trusts, contentious trusts and probates, Inheritance Act claims, estate and succession planning, international wills and trusts, non-domiciliaries, mental incapacity and Court of Protection work, heritage property, art, landed estates and charitable trusts. She acts as trustee, executor, deputy, attorney and charitable trustee for many well-known clients and is often appointed by the court in these roles where there are disputes. Suzanne is a notary public practising in the City of London and is a member of STEP, ACTAPS, and the CLA.” [These are the acronyms of the Society of Trust and Estate Practitioners, the Association of Contentious Trust and Probate Specialists, and the Country Land and Business Association respectively].

[48]She and her firm have substantial experience of acting as professional deputies and the role of other partners and members of staff should not be underestimated. In July 2015 the OPG published a set of ‘Deputy Standards’ for professional deputies, Standard 3 of which requires professional deputies to “maintain effective internal office processes and organisation”. Amongst other things, this involves establishing clear and effective governance between the named deputy and staff delegated to carry out the day-to-day functions of the role.

[49]Both Suzanne Marriott and Charles Russell Speechlys also have considerable know-how in dealing with landed families and private wealth management. I imagine that, in selecting Suzanne Marriott as a potential replacement for C, Macfarlanes consciously looked for someone with a similar practice to their own but with more experience of contentious Court of Protection matters.

[50]I concur with the observation made by Mr Justice Newey that, although Charles Russell Speechlys’ fees are likely to be large, it is improbable that they will be excessive because the Senior Courts Costs Office will carry out a detailed assessment of their general management costs on the standard basis each year.

[51]With a view to keeping the costs as proportionate as possible, and because I believe that it would be in A’s best interests to do so, I shall allow the applicant’s request, to which I referred in paragraph 33 above, and direct Mrs Marriott to reply only to communications from D that appear to be relevant to her role as deputy and not to reply to any irrelevant communications or to any relevant point that he has raised more than once.