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
IN THE MATTER OF HS
First Avenue House
42-49 High Holborn
London WC1V 6NP
Before :
SENIOR JUDGE LUSH
Between :
THE PUBLIC GUARDIAN | Applicant |
- and - | |
RA and CA | Respondents |
Fatima Chandoo of the Office of the Public Guardian
The respondents in person and unrepresented
Hearing date: 29 April 2015
JUDGMENT
Senior Judge Lush:
I have been asked to reconsider two orders I made on the papers.
The first was an order dated 29 October 2014 revoking HS’s Enduring Power of Attorney and the second was an order made on 10 December 2014 appointing Essex County Council to be HS’s deputy for property and affairs.
The procedure governing “orders made without a hearing or without notice to anyone” is described in rule 89 of the Court of Protection Rules 2007 (SI 2007 No.1744 (L.12)).
As this is a case “where there is a dispute as to who should act as an attorney or deputy”, I am required to allow this judgment to be published: Practice Guidance:Transparency in the Court of Protection: Publication of Judgments, [2014] COPLR 78, paragraph 17.
The facts
HS is 52. She was born on 13 December 1962.
She has Huntington’s disease, which is a genetic neurodegenerative disorder that damages certain nerve cells in the brain. It is incurable. The brain damage gets progressively worse over time and affects movement, cognition and behaviour.
She was first diagnosed with the disease at the age of 39, and had inherited the HTT gene from her late father, who didn’t have Huntington’s himself, though his brother did.
There are five stages of the disease: (1) Early Stage, (2) Early Intermediate Stage, (3) Late Intermediate Stage, (4) Early Advanced Stage, and (5) Advanced Stage.
HS is at the fifth stage, in which someone with Huntington’s usually requires professional nursing care and complete support in the activities of daily living. She has two professional carers.
Her domestic circumstances are slightly unconventional and, for the purposes of this judgment, her immediate family consists of:
her former partner, RA, who was born on 29 July 1966 and is a facilities assistant and IT technician;
their son, CA, who was born on 19 August 1995 and is currently at university studying for a degree in forensic science; and
RA’s wife, KA. They married in 2006.
HS lives in Essex on the ground floor of a property owned by RA’s parents, and RA and CA live upstairs in the same house. KA lives at an entirely different address in the same town.
HS and RA lived together as an unmarried couple for a number of years, but their relationship began to break down in the late 1990s when their son was a toddler. HS became increasingly volatile and aggressive towards RA and, although they didn’t realise it at the time, this was an early symptom of her illness.
When HS was formally diagnosed with Huntington’s in 2002, RA vowed to stand by her. In 2006 they ceased being a couple for certain purposes, such as HS’s entitlement to means-tested benefits, and shortly afterwards RA married KA.
On 8 June 2005 HS executed an Enduring Power of Attorney (‘EPA’) in which she appointed RA to be her sole attorney and conferred upon him general authority to act on her behalf in relation to all her property and affairs.
As she was, at that time, ‘becoming’ incapable by reason of mental disorder of managing and administering her property and affairs, the attorney, RA, had a duty to apply to the court to register the EPA immediately, and it was registered on 26 September 2005.
An EPA only confers on the attorney authority to make decisions relating to the donor’s property and financial affairs, and on 23 August 2005 HS made a Living Will in which she appointed RA to be her health care proxy. She made it in the presence of her GP, who witnessed her signature.
People with Huntington’s disease usually die about fifteen to twenty years after their symptoms first appear and, according to RA, HS has already exceeded her anticipated life expectancy by four years.
The only property and affairs that need to be managed on her behalf are her state benefits (Income Support and Disability Living Allowance) and some savings of roughly £3,300. About half of this sum will be used as a deposit on a new Motability vehicle and the other half will pay for a short holiday with her carers, possibly in Cornwall.
Previous proceedings
There were previous proceedings in the Court of Protection, which I should mention briefly.
The acronym ‘WAA’ stands for ‘Working Age Adult’. On 13 June 2013 the WAA Community Team at Essex County Council sent a letter to RA saying:
“There are concerns that you have been administering solid food to HS against expert medical advice given to you by the Speech and Language Assessment Team. I need to make you aware of the risks to HS if you continue to do this, i.e. this could cause her to choke and could be potentially fatal. You need to be aware that if you do not comply with the expert medical advice and, as a result of this, any harm ensues to HS by your actions, this will place you at risk of a criminal charge as we will be obliged to notify the Police.”
On 22 July 2013 Essex County Council applied to the Court of Protection for an order revoking both the EPA and the Living Will.
An attended hearing was listed to take place on 21 November 2013, but on 25 October the court approved a consent order in which:
the council withdrew its application;
the hearing was vacated;
the court declared that it was in HS’s best interests to continue to live in the same house as RA and CA; and
RA agreed “not to provide HS with any care, including personal care, provision of medication, feeding of any sort, or manual handling, including lifting and positioning.”
The Public Guardian’s application
On 30 July 2014 the Public Guardian applied to the court for the following order:
“An order under Schedule 4, paragraph 16(4)(g) and sub-paragraph (5) of the Mental Capacity Act 2005 for the revocation of the Enduring Power of Attorney and directing the Public Guardian to cancel its registration.
An order directing that an officer of Essex County Council be invited to seek appointment to become deputy to make decisions on behalf of HS in relation to her property and financial affairs.”
The application was accompanied by a witness statement made on 25 July 2014 by Ruth Evans, an investigations officer with the OPG. To summarise, she said that:
Concerns were raised on 3 July 2013.
It was alleged that RA was denying HS and her carers access to her funds.
It was also claimed that he was unable to account for £40,000 of her money.
A Court of Protection Visitor (Emma Farrar) saw HS on 6 August 2013 and reported that, although HS’s communication skills were now extremely poor, “her brain can process simple questions and she can communicate with simple yes or no replies.”
The Visitor considered that, “although HS does not have the capacity to manage her own finances, she does have the capacity to direct RA in the management of her affairs.”
On 3 October 2013 the OPG asked RA to provide an account of his dealings as attorney.
In his response RA acknowledged that: “I have not kept professional accounts and I have allowed the crossover of funds.”
He said that he had tried to keep receipts but, “eventually in a fit of exasperation I threw them out.”
RA concluded his response by saying, “my time is very stretched and the time I have allowed for HS has been dedicated to her benefit and not your department’s.”
Ruth Evans concluded her witness statement as follows:
“RA has failed to comply with his duties as an attorney. The Mental Capacity Act stipulates that, where a person has the capacity to make a decision, they should be provided with support to do so. However, the Visitor reported that RA has not been consulting HS in decisions relating to her finances, even though she is able to advise him of her wishes. RA has also been unable to provide the OPG with any explanation regarding the expenditure from HS’s account as, by his own admission, he has not kept detailed records or receipts. In addition to this, RA has admitted to allowing the lines between his own and HS’s funds to become blurred. Consequently, this means that the OPG is unable to determine how RA has spent HS’s money and if it has been used in her best interests. RA also clearly states in his letter received on 5 November 2013, that he would be content for the OPG to take over managing HS’s finances and describes his role as attorney as an additional headache.”
Court orders
On 6 August 2014 I made an order requiring:
the OPG to serve the papers on RA by 15 August;
RA to respond to the application by 12 September;
Essex County Council to complete a deputy’s declaration (COP4) by 12 September confirming their willingness to act as deputy; and
the matter to be referred back to me on or after 15 September 2015.
When the matter was referred back to me, it appeared that there had been no response from either RA or Essex County Council, and on 29 October 2014 I made an order revoking the EPA.
On 10 December 2014, having eventually received a deputy’s declaration from the council, I appointed the authorised officer for property and affairs deputyships of Essex County Council to be HS’s deputy for property and affairs.
The application for reconsideration of the orders
Subsequently, it transpired that the following documents had, in fact, been lodged with the court but hadn’t been placed on the file.
HS’s son, CA, had submitted:
an acknowledgment of service on 16 August 2014 in which he objected to the application and asked to be joined as a party to the proceedings; and
a witness statement dated 10 September 2014.
In his witness statement CA said:
“I am aware that this case is to decide whether to revoke the Enduring Power of Attorney made by my mother in 2005 and, as with the last case, if the court deems this necessary I would like to take the responsibility myself. I do not think that Essex County Council are suitable to take over my mother’s affairs due to everything that has happened so far and I fail to see how they can possibly have her best interests at heart. I have been witness to so much that has happened with my mum and I can honestly say that, apart from family, the only people who have had my mother’s best interests at heart have been the majority of the paid carers. I also request this on the grounds that I have recently discovered that, while in hospital, my mum was asked who she wanted to be in charge of her finances, and was told that I couldn’t do it because I wasn’t eighteen. I was only about three weeks from being eighteen and I think that this is a negligible difference, and it could have been held in my place. However, I am now nineteen, and fully capable of taking over her finances as she wished.
I understand my father has made a mistake in his treatment of my mum’s funds in that he has failed to keep records, but to my knowledge I do not believe he has done anything morally wrong. My mother has never wanted for anything and, when she has stated that she wants something, my dad provided as soon as he possibly could. I have often seen him take money from his own wallet if her purse was empty and he didn’t have time to go to the cash machine.
However, I would treat her finances in a more professional manner, and I am fully capable of looking after them. All bills are accounted for by direct debit and show on her bank statements, and other expenses would be signed for once beyond my possession, such as giving money to the carers to pay for mum’s trips out. This way there would be no confusion on my part should anything happen.”
Attached to CA’s acknowledgment of service was a testimonial from Julie Anderson, a nurse consultant in mental health, who supported his application.
RA had filed three witness statements dated 6 September, 7 September 2014, and 10 September 2014 and his wife, KA, had also filed a witness statement on 10 September 2014.
In his witness statement of 7 September 2009 RA was particularly critical of Essex County Council. He said:
“I unequivocally confirm that my historical relationship with Essex County Council Social Services Team has been contentious. I am fully aware that the care package allowing HS to remain at home has been excessively constrictive on the Social Care budget. I am in no doubt that without my obstructive presence HS would have been moved into residential care years ago. However, none of the above statements allows for the abusive and sustained campaign against me that Essex County Council and their employees Active Assistance entered into last year. … It is against this background that this OPG investigation transpired. I am concerned that a large proportion of Ms Evans’s report is based on information she received from Essex County Council.”
When I made the order revoking the EPA on 29 October 2014, I had been unaware of these representations, and on 6 December 2014 RA lodged an appellant’s notice (COP35) and a skeleton argument (COP37) in which he sought to appeal my decision.
RA’s appellant’s notice ‘crossed in the post’ with my order of 10 December appointing Essex County Council to be HS’s deputy.
Leading up to the hearing
An appeal is only appropriate if the decision being appealed was made at an attended hearing. Thus, on 17 February 2015 I made an order stating that RA’s application would be treated as an application for reconsideration of the order pursuant to rule 89 of the Court of Protection Rules 2007, rather than an appeal.
In the same order I directed that:
CA would be joined as a party to the proceedings as the second respondent;
the OPG and Essex County Council were to file and serve a response to RA’s application by 20 March;
RA and CA were to file and serve by 17 April a witness statement setting out any further evidence or submissions upon which they wished to rely at the hearing; and
the application would be considered by me at an attended hearing on Wednesday 29 April 2015.
On 19 March 2015 Ruth Evans of the OPG made a second witness statement, which she concluded as follows:
“The Public Guardian has considered the application forms, notices and witness statements received in relation to this matter and his position remains the same. The EPA appointing RA should be revoked and a member of the panel of deputies should be invited to become replacement deputy.
In respect of the COP5 filed by CA dated 10 September 2014, including a supporting letter (undated) from Julie Anderson, Nurse Consultant in Mental Health, the Public Guardian has no evidence to support or to disprove the contents of those documents. The Public Guardian is unable to comment on the suitability or capability of CA to undertake this role.
The court is asked that the EPA appointing RA is revoked and a member of the panel of deputies is invited to apply as replacement deputy.”
The hearing
The hearing took place on Wednesday 29 April 2015 and was attended by:
Fatima Chandoo and Mamuna Mahfooz of the OPG; and
RA, CA and KA, who were unrepresented.
It transpired that RA no longer objected to the order of 29 October 2014, in which I had revoked the EPA, but was seeking reconsideration of the subsequent order, made on 10 December 2014, in which I had appointed Essex County Council as HS’s deputy. He supported CA’s application to be appointed as deputy instead of the council.
The law relating to the appointment of a deputy
The court’s power to appoint a deputy can be found in section 16(2) of the Mental Capacity Act 2005.
Section 16(3) states that this power is “subject to the provisions of sections 1 (the principles) and 4 (best interests).”
Of particular relevance in this case are:
section 1(6), which provides that “regard must be had to whether the purpose for which [the decision] is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action”;
section 4(4), which provides that [a deputy] “must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate as fully as possible in any act done for him and any decision affecting him”; and
section 4(6)(a), which requires the court to “consider, so far as is reasonably practicable, the person’s past and present wishes and feelings.”
The court has complete discretion as to whom it appoints as a deputy though, generally speaking, in the absence of any good countervailing reason, it is in the best interests of the person who lacks capacity to appoint a relative or close friend in preference to a stranger.
A panel deputy is a deputy of last resort and should be appointed only in cases where there is no other suitable person who is willing and able to act.
Decision
In this case, there is no countervailing reason to prevent the court from appointing CA to be his mother’s deputy for property and affairs.
HS and RA were an unmarried couple and, like most couples, they held their money in a joint account. HS didn’t work after CA’s birth in 1995 and she became ill soon afterwards. RA was the family’s sole breadwinner and the principal contributor to the joint account. There is no question of his having misappropriated funds nor is there any need for the deputy to pursue him for the recovery of funds.
The appointment of Essex County Council as deputy was inapt in the circumstances, given the history of the family’s contentious relationship with the council’s social services team, described by RA in paragraph 34 above.
The appointment of a panel deputy would be completely disproportionate. In Re DT [2015] EWCOP 10 I calculated that the likely costs of a panel deputy in a fairly straightforward case would be roughly £6,100 during the first year of appointment and about £4,000 in the second and subsequent years.
HS is in receipt of means-tested benefits and she has savings of only £3,300. It is far better that her savings are used for a deposit on a new Motability vehicle and a holiday in Cornwall with her carers, than to pay for the services of a panel deputy.
CA attended the hearing and the impression I formed of him was entirely consistent with Julie Anderson’s letter, which he had submitted in support of his application. She had said that:
“Like many children of parents with illness, CA is mature beyond his years, used to taking responsibility and is accountable for his actions. From a very young age CA has been aware of his mother’s needs and the role of the various carers and organisations coming into the house. For many years he was one of the few people able to understand his mother’s speech, and would always advocate on her behalf to her carers. He is of an extremely caring nature, and this was exampled to me last year when he refused to take a holiday in Australia, as his mum’s health had deteriorated and he did not feel happy to leave her at that time.
Intellectually CA is perfectly able to and has demonstrated his ability to manage a budget and live within his means. He is organised and logical enough to keep receipts and assertive enough to remind carers to do the same. I would not expect him to have any problems at all with maintaining the financial records and budget for HS.
CA is the person who has been most involved in HS’s life and safety over the past 15 years and he is now ready and asking to help her with the power of attorney. He is capable of the role and has enormous commitment and love for his mum. I fully support his application.”
For the purposes of:
section 1(6) of the Mental Capacity Act 2005 - CA’s appointment would be the least restrictive option;
section 4(4) - CA is the most likely person to support his mother to make decisions for herself, so far as reasonably practicable; and
section 4(6)(a) - when she was in hospital in July 2013, HS was asked who she wanted to be in charge of her finances and, having replied “CA”, she was told that he couldn’t do it because he wasn’t yet eighteen. Section 19(1) of the Act states that “a deputy appointed by the court must be an individual who has reached 18.” CA reached eighteen on 19 August 2013, and age is no longer an impediment to his appointment.
I suspect that CA made a similarly favourable impression on Ms Chandoo from the OPG. At the hearing she conceded that, although the Public Guardian had asked the court to appoint a panel deputy, having met CA and his father and stepmother, and having heard what they had to say, she felt that the Public Guardian would have no objection to the appointment of CA as HS’s deputy for property and affairs.
CA completed a deputy’s declaration (form COP4) and an order appointing him as his mother’s deputy in place of Essex County Council was made on the same day.