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.
MENTAL CAPACITY ACT 2005
First Avenue House
42-49 High Holborn,
London, WC1V 6NP
Before:
Senior Judge Lush
Re EU (Appointment of deputy)
Between:
SUFFOLK COUNTY COUNCIL | Applicant |
- and - | |
JU (1) - and - TU (2) | Respondents |
Lee Parkhill for Suffolk County Council
TU in person, JU did not appear
Hearing date: 15 July 2014
JUDGMENT
Senior Judge Lush:
EU’s sons, JU and TU, have objected to an application by Suffolk County Council to be appointed as his deputy for property and financial affairs.
The family and financial background
EU was born on 3 December 1924 and was formerly a landscape gardener and an antiques restorer.
He used to live in a grade II listed house in Suffolk, which he was forced to leave when it became derelict and uninhabitable.
He was subsequently accommodated in a social housing bungalow, but of his own volition continued to live in squalor.
He managed to get himself banned from the local supermarket for taking goods without paying, and as a result he had to walk a return journey of six miles to a neighbouring village to find a shop that was willing to sell him food.
On 6 August 2012 he was admitted to hospital with smoke inhalation after setting fire to a pan in his kitchen. He discharged himself from the hospital a week later and went missing for twenty-four hours before being found by the police.
Since 16 August 2012 he has resided in a privately owned residential care home.
EU and his wife divorced about forty years ago.
They had three sons:
TU, who was born in 1957, lives in London and is a musician and songwriter;
RU, who was born in 1958, lived in Suffolk, and died in December 2013; and
JU, who lives with his mother in Derbyshire and is her primary carer.
When his marriage broke down, his sons took their mother’s side, which EU resented and he became gradually estranged from them.
EU was formally diagnosed as having dementia when he was hospitalised in August 2012. A more specific diagnosis of vascular dementia was made in February 2013.
His assets consist of:
The derelict freehold property | 74,000 |
Accumulated income from state benefits | 13,078 |
Lloyds TSB private client account | 9,092 |
Norwich and Peterborough Gold Account | 6,030 |
£102,200 |
He also has two vehicles and various items of furniture, which are currently in storage.
EU’s liabilities are:
Contribution to care fees | 31,133 |
Utility debts | 6,700 |
Storage fees | 500 |
£38,833 |
His weekly income consists of:
Attendance Allowance | 81.30 |
Pension Guaranteed Credit | 91.55 |
State Retirement Pension | 56.80 |
£229.65 |
His principal outgoings are care fees of £517 a week.
In April 2013 the Department for Work and Pensions appointed Suffolk County Council to be his appointee, enabling the Council to claim, receive and deal with his social security benefits.
On 5 February 2014 Suffolk County Council applied to be appointed as his deputy for property and financial affairs.
The application was accompanied by an assessment of capacity, form COP3, which had been completed on 16 December 2013 by his social worker, Sarah Parker, who expressed the opinion that “EU lacks the capacity to make an informed decision regarding his finances and management thereof.”
In response to question 7.7 on the form – “Are you aware of anyone who has a different view regarding the capacity of the person to whom the application relates?” – Sarah Parker said:
“JU, EU’s son, has spoken on occasion with his father on the telephone since EU entered residential care. EU consistently advises all persons he speaks with that he has been kidnapped and placed in residential care. His son has indicated that this is true.
Prior to this it is understood that EU had limited contact from JU. JU has never visited his father despite promises to do so. He has stated that in his view his father does not have dementia, based upon how his father presents when they speak on the telephone.
It should be noted that following contact with his son, EU often becomes noticeably more confused and distressed and staff have expressed their concern relating to the relationship.”
JU contacted three firms of solicitors with a view to obtaining a Lasting Power of Attorney, which would enable him to manage his father’s property and financial affairs. According to Suffolk County Council:
“Between 29 October 2012 and 28 November 2012 he approached EU’s old solicitor Lewis Rose from Flint Bishop Solicitors and Laura Doherty of Crane and Walton Solicitors and Christopher Cumberbatch of Marshall Hatchick instructing them on his father’s behalf. ... More recently, JU has appointed a solicitor from Margary & Miller to represent him in his opposition to the local authority’s application in favour of his appointment.”
The objection
On 17 March 2014 JU wrote to the court enclosing an application notice in which he objected to the Council’s application and sought an adjournment, even though no hearing date had been set. He said:
“My father is being held in this home against his will.
He has been given no other choice.
He is very unhappy and wishes to leave.
My father asked me to act on his behalf.
I fully believe that my father is capable of making this decision and does understand.
I am trying to help my father uphold his wishes.
My father no longer has any family or friends in the area where he lives.
I would like him to move where I live. He has some friends nearby who would like to visit him.
It would also enable me to spend some time with him, which he would like.
I have spoken at length to people involved with my father but without success.
Nobody seems willing to discuss any other option for my father apart from the present one.
I am aware that my father’s possessions have already been taken.”
Orders
On 2 April 2014 I made an order:
inviting the parties to consider mediation in an attempt to reach a mutually acceptable solution; failing which
setting out a timetable for the filing and serving of evidence; and
listing the matter for hearing on 12 June 2014.
On 15 May 2014 Suffolk County Council applied to the court to adjourn the hearing that was due to take place on 12 June 2014 to allow further time for discussions to take place between the parties.
In a witness statement accompanying the application, EU’s social worker, Carol Richards, said:
“I would recommend that Suffolk County Council (‘SCC’) is better placed to become EU’s deputy to continue the work they have been undertaking for the last two years. A local authority managing EU’s finances guarantees against financial abuse and will ensure that financial transactions are made in EU’s best interests and in a timely manner.
SCC has had some concerns regarding JU’s expressed wish to become EU’s deputy. The father and son relationship is tenuous. They were estranged for many years and they live a long distance apart. Conversations with JU indicate that he has given little consideration to the full range of responsibilities an appointed deputy undertakes. Nor has he demonstrated that he has the qualities to manage the affairs of another. I wrote to JU on 28/04/2014 in accordance with the court’s directions following a lengthy telephone conversation with him on 15/04/14 when he put forward the statement that as EU’s son he was rightly entitled to become his deputy and could manage EU’s affairs adequately from a distance. He stated that he did not trust Suffolk Adult Care Services. He did not seem to comprehend the wider fiduciary duties of a deputy. I was concerned that JU was expressing his own interests and not those of his father. As yet the proposal to have a three way meeting with EU, JU and a social worker and/or independent mental capacity advocate has not been possible as JU has not indicated when he would be available to attend.
However, given the strength of feeling expressed by JU, it has been decided that some further consideration of this matter should take place before the court adjudicates on this matter, and a best interests decision made by the authority. Regrettably this has not been completed at the time of making this statement. It is proposed that further efforts will be made to meet with JU and to arrange a meeting with him and EU so that they can consider the future dealings of EU’s finances and affairs together with Adult Care Services (‘ACS’). ACS will request that an IMCA is appointed for this process. A further best interests meeting will be held, to which JU will be invited, and my authority will make a further best interests decision regarding how EU’s finances should be managed. There are a number of possible outcomes but the decision will primarily be as to whether SCC will pursue its application to become deputy or alternatively will withdraw its opposition to JU’s appointment.”
The hearing was duly adjourned and relisted for Tuesday 15 July 2014.
The IMCA’s report
Paula Lambert of Voiceability, 42 Alexandra Road, Lowestoft, Suffolk NR32 1PJ is an Independent Mental Capacity Advocate (‘IMCA’). On 27 May 2014 she submitted a report, which she concluded with the following ‘points for consideration’:
“Consideration to be given to EU’s consistent view around contact with his son JU. EU said that during his telephone conversations with JU, his son says that he plans to visit him however this does not occur. EU cannot state the last time he saw his son JU and reported that he has never seen the man.
Consideration to be given to his past contact with his other son TU. It has been reported by Carol Richards that TU did not previously have contact with his father. This began to occur on 29/01/2014 when he came to inform EU that his son RU had passed away. EU has stated that he lived his later life alone.
Consideration to be given that EU has stated he wishes to remain where he is. He said that he has grown used to it. [The residential care home] is set in rural location with large gardens. Consideration should be given to EU’s previous occupation of a gardener.
Consideration should be given to the complexity of the family dynamics. ACS’s statement states that the father and sons’ relationship is tenuous, and they have been estranged for many years and live a long distance apart. IMCA noted that JU asked the IMCA what was actually wrong with his father. It appeared he has no understanding of his father’s capacity and current health. When IMCA asked him about dealing with health and welfare decisions he did not comment.
Consideration that EU has stated that he wishes ACS to manage his finances and not a family member. EU stated that JU “never comes to see him, yet he wants to manage my finances.”
Article 8 of the European Human Rights Convention states that everyone has a right to respect for private and family life. JU (son) has contacted EU, but has been unable to visit his father for many years. JU reports that if EU moves closer to the family that he would be able to visit. EU has expressed that he would rather remain in Suffolk at [the residential care home].
Consideration should be given to the least restrictive option in respect to EU’s wishes and feelings. EU has said that he wishes to remain at [the residential care home] and for ACS to manage his finances. He has lived at [the residential care home] since 16.08.2012.”
The hearing
On 8 July 2014 JU filed an application notice in which he said, without any further explanation, “I would ask to withdraw from the hearing of 15 July 2014 for personal reasons.”
On 14 July 2014 - the day preceding the hearing - EU’s eldest son, TU, who had previously taken no part in the proceedings, filed an acknowledgment of service in which he said he wished to be joined as party because he opposed the application. He said, “I disagree with the reasons and grounds of Suffolk County Council Adult Care Services’ application. An independent party should be appointed.”
The hearing took place at 11 am on Tuesday 15 July 2014 and lasted an hour and a half. It was attended by:
Lee Parkhill, barrister, 4-5 Gray’s Inn Square, and Carol Richards and Sarah Parker from Suffolk County Council;
TU; and
EU, who, although he was too frail to travel, nevertheless had expressed a wish to take part in the proceedings by telephone. His IMCA, Paula Lambert, sat next to him while he was on the phone to the court.
The law relating to the appointment of a deputy
Sections 1 to 4 of the Mental Capacity Act 2005 provide that, if a person (who is referred to as ‘P’ in the Act) lacks capacity to make a particular decision at a particular time, then any act done or decision made by someone else on his behalf must be done or made in his best interests.
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. In particular, they must take the following steps:
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));
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));
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));
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));
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
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)).
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.
In continental countries where the legal systems are based partly on Roman law, family members traditionally had a public duty to act as a curator (their equivalent of a ‘deputy’) for someone who lacked the capacity to manage their property and financial affairs. No one could refuse to act as a curator, though not everyone had the time or the inclination, or the ability or the energy to take on a responsibility of this kind, and numerous grounds for exemption, known as ‘excuses’, developed whereby a family member could avoid being appointed as a curator.
In England and Wales there has never been a public duty for family members to act as a deputy or its antecedents but, equally, family members have never had an automatic right to be appointed.
The Court of Protection has a discretion as to whom it appoints and has generally 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.
The main reason for preferring family members to strangers, as a starting point, has been respect for their relationship, which is now reflected in Article 8 of the European Convention on Human Rights, but there are other, practical reasons for choosing a family member.
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. And, because professionals charge for their services, the appointment of a relative or friend is preferred for reasons of economy.
There are, of course, circumstances in which the court would never contemplate appointing a family member as deputy. I gave some examples in Re GW, London Borough of Haringey v CM [2014] EWCOP B23, at paragraphs 28 and 29.
Decision
In this case the reasons for appointing a family member as deputy rather than the local authority are far from cogent. EU’s sons have been estranged from him for the last forty years. Neither of them is familiar with his affairs and, because of their distance, both geographical and emotional, neither of them is in a position to consult and interact with him and encourage him to participate in the decision making process.
I agree with the reservations expressed by Carol Richards in her witness statement of 15 May 2014 regarding JU’s suitability to act as his father’s deputy. I doubt whether he has fully considered the range of responsibilities undertaken by a deputy and I suspect that he may be placing his own interests before those of his father. There was an unseemly scramble to get hold of a Lasting Power of Attorney (‘LPA’), even though JU had not met his father or considered whether he had the capacity to create an LPA.
I know nothing of JU’s personal circumstances, or his employment history or financial track record, and it is simply not enough for him to say that because he is EU’s son he is “rightly entitled to be his deputy.”
I also accept Carol Richards’ submission that there can be distinct advantages in having a local authority act as deputy. These include:
considerable hands-on experience in dealing with the property and financial affairs of adults who lack capacity to manage their own affairs;
more rigorous checks and balances against financial misconduct and other forms of abuse than are possible in cases where a lay deputy is appointed;
membership of a professional association, the Association of Public Authority Deputies (‘APAD’), which provides guidance on professional ethics and best practice; and
a greater awareness of:
the provisions of the Mental Capacity Act 2005;
the requirement, where necessary, to assess the person’s capacity to make a particular decision at a particular time;
the criteria and procedure for making a best interests decision;
the contents of the Mental Capacity Act Code of Practice, particularly relating to the duties of a deputy; and
the ongoing case law emanating from judgments such as this.
The Council has shown professionalism in its handling of this case. It attempted to comply with the court’s invitation to resolve this matter by mediation, but hit a brick wall of obfuscation and procrastination. It arranged for an independent mental capacity advocate to meet EU in order to ascertain his present wishes and feelings about the application, and the IMCA subsequently encouraged him to participate in the decision-making process by being with him when he addressed the court over the telephone at the hearing.
In his very late intervention in these proceedings, TU expressed the wish that an independent deputy be appointed. A panel deputy really would be a complete stranger, whereas Suffolk County Council has had an ongoing relationship with EU for the last two years. The appointment of a panel deputy would also be disproportionate because they would charge considerably more for their services than the local authority. This can be seen from the different scales of remuneration for solicitors and local authorities set out in the Court of Protection’s Practice Direction 19B.
The factor of magnetic importance in this case is EU’s own wishes and preference. The IMCA’s report makes it abundantly clear that he wishes to remain in the residential care home in Suffolk, rather than be moved to Derbyshire, and that he would like Suffolk County Council Adult Care Services to manage his property and financial affairs. He reiterated these wishes over the telephone at the hearing on 15 July 2014, and I can see no reason why they should not be implemented.
Having regard to all the circumstances, therefore, I am satisfied that it is in EU’s best interests to appoint Suffolk County Council to be his deputy for property and affairs and to dismiss his sons’ objections.