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 ME
SJ | Applicant |
- and - | |
(1) SS (2) TD (3) PE | Respondents |
The applicant in person and unrepresented
The respondents in person and unrepresented
Hearing date: 15 September 2015
JUDGMENT
Senior Judge Lush:
This is an objection to an application for the appointment of a deputy for property and affairs.
The background
I shall refer to the person to whom these proceedings relate as Margaret. She was born on 9 June 1933 and was formerly a self-employed dressmaker and upholsterer.
She has been married three times and has five children.
She has three daughters from her first marriage:
the applicant, Stephanie, who was born on 19 October 1953 and lives in Pulborough, West Sussex. She was formerly an accounts administrator but is currently off work because she has bipolar disorder.
the first respondent, Susan, who was born on 19 January 1955 and lives in New Addington, Croydon. She is a care assistant.
the second respondent, Tina, who was born on 28 June 1957, and lives in Croydon. She works part-time as an assistant cook and kitchen assistant at a school.
Margaret has a daughter from her second marriage, Mandy, who was born in 1959 and whose address has been withheld at her request. She has taken no part in these proceedings.
Margaret has a son called Paul from her third marriage. He was born on 7 January 1973, lives in Croydon, and is a bus driver.
Margaret and her third husband, Michael, lived in New Addington, but in 2007 they followed their dream and moved to Spain. They had a villa in Orihuela, near Alicante.
Michael died in Spain in August 2010 and Margaret returned to England a few weeks after his death.
She has mixed Alzheimer’s dementia and vascular dementia, which was first diagnosed in 2006, a year before she moved to Spain.
She is now a resident in care home in Purley, Surrey.
The only capital she has is a two-thirds share of the villa in Orihuela. Her son, Paul, owns the other third share. The villa is currently unoccupied and not on the market. It is worth in the region of £130,000.
The only income she receives is a state pension of about £170 a week. It is paid into her Lloyds TSB account, on which there is a standing order to pay her care home fees.
The application
On 14 February 2015 Stephanie applied to the court to be appointed as her mother’s deputy for property and affairs jointly and severally with her sister, Susan.
Burt Brill & Cardens, Solicitors, gave her some preliminary advice and assistance in connection with the application.
In the application form Stephanie said:
“My brother Paul is controlling our mum’s finances without legal authority. He has made no money available for her personal needs. I suspect he is renting out her villa in Spain and keeping the proceeds even though he claims it has stood empty for years. Mum could be moved to a better care home. Mum’s care is partly funded by Croydon Council. Paul writes a cheque each month for the balance. I believe he has a debit card which he is using.”
Both Stephanie and Susan submitted a deputy’s declaration (COP4) and in her declaration Susan said:
“My brother Paul took control of my mum’s finances when she returned from Spain four years ago and was placed in a care home as she has suffered with Alzheimer’s for a number of years. I have personally purchased all my mum’s personal requisites. Mum’s care is partly funded but she is allowed for herself £24.40 per week by law. This equates to over £5,000 for the four years, little of which has been spent on my mum, apart from the odd hairdressing bill he has paid for.”
The objections
On 27 April 2015 Paul filed an acknowledgment of service (COP5) opposing the application. He said:
“My mum’s care home is paid by direct debit. The villa in Spain is not being rented. Social Services have looked into this. My mum is happy at [the care home] and it was decided for her at a best interest meeting and so she will remain at [the care home]. I do hope this helps.”
On 28 April 2015 Susan – who had done a complete ‘U turn’ - filed an acknowledgment of service opposing the application. She said:
“I do not wish to be included on this application with Stephanie as I do not agree with the things she has said about my brother Paul. This is untrue. I went to Spain on the 4 April 2015 and my mum’s villa is not being rented out. Most of mum’s money is paid to [the care home] by direct debit. My brother is an honest and trustworthy person. I think my sister Mandy and Paul should have Court of Protection.”
On 20 May 2015 Tina filed an acknowledgment of service, in which she also objected to the application. She said:
“The allegations made towards my brother Paul are unfounded. We had a best interest meeting on the 13th March with the Social Services and it was decided by myself, Social Services, my sister Susan, my brother Paul, the CPN and the psychiatric doctor, that it would be in our mum’s best interest to remain at [the care home]. Stephanie did not attend this meeting. My mum is allowed to keep £22 per week. The home is paid by direct debit from my mum’s bank account and topped up by Croydon Council. I came back from Spain on the 11th April and my mum’s villa is not being rented out. The villa is in my mum’s and brother’s name. Social Services have the proof of this. This has been an ongoing thing with Stephanie. Stephanie has only visited my mother 4-6 times in four and a half years. I don’t believe Stephanie has my mum’s best interest at heart and the only reason she wants my mum moved is because she has caused problems at the care home. On one incident the police were called.”
Order
On 8 July 2015 I made an order listing the application for hearing on Tuesday 15 September 2015 and setting out a timetable for the filing and serving of evidence and submissions.
Further evidence and submissions
Paul produced the minutes of the best interests meeting on 13 March 2015, to which Tina had referred in her acknowledgment of service. The purpose of the meeting was to decide whether or not it was in Margaret’s best interests to remain at [the care home]. The decision, which was unanimous, was that:
it was in her best interests to remain at the care home;
the medical team would review her medication dosage; and
a warning letter would be drafted and sent to Stephanie regarding the home’s visitors’ policy and confidentiality protocol; and
staff would continue to keep a record of Stephanie’s behaviour and collectively monitor the situation.
On 13 August 2015 Stephanie made a further application for me to set aside her mother’s will. Apparently, the will had been made at some time in 2007, when her mother had dementia, and her signature had been witnessed by a relative.
The hearing
The hearing took place on Tuesday 15 September 2015 and was attended by:
Stephanie, who was accompanied by a friend; and
Susan, Tina and Paul, who were accompanied by Sally Bentley and Elicia Davis of the Personal Support Unit (PSU).
I told Stephanie that I wasn’t prepared to consider her application to set aside her mother’s will at the hearing. She would need to make an entirely separate application and set out all the evidence specified in practice direction PD9F.
The law relating to the appointment of a deputy
I have published several judgments lately in which I have summarised the law relating to the appointment of a deputy, and don’t propose to go over the same ground again. I am happy to confirm what I said about such matters in my last judgment, Re DGP [2015] EWCOP 58, at paragraphs 34 to 39.
Essentially, the court has a discretion as to whom it appoints as a deputy, but it must exercise that discretion judicially and in the best interests of the person who lacks capacity to make decisions regarding the management of their property and financial affairs.
Decision
I am not going to appoint a professional deputy. A professional deputy would charge at least £5,000 for his or her services during the first year post-appointment, and possibly a lesser (though still significant) sum in the second and subsequent years. However, until the villa in Spain is sold, there will be no funds available to pay a professional deputy and it would be unreasonable to expect them to act pro bono on anything more than a temporary basis.
In any event, the appointment of a professional deputy is a decision of last resort and it is unnecessary in this case because there is at least one family member who is willing and able and suitable to act.
I am not going to appoint Stephanie because:
she has a poor relationship with her siblings; and
she also has a poor relationship with the staff and management at the care home in which he mother resides.
A deputy needs to be able to interact successfully with other people who have an interest in Margaret’s welfare, and has a duty to consult them as to what they think would be in her best interests. I very much doubt whether Stephanie has the requisite inter-personal skills to perform this task satisfactorily.
I am not going to appoint Paul because:
he hasn’t put himself forward for appointment; and
he could have been more proactive, rather than reactive, in providing his mother with a personal allowance;
there is a conflict of interests insofar as he owns the other 1/3rd share of Margaret’s villa in Spain;
he has done absolutely nothing about the villa during the last five years. He hasn’t let it to produce an income for his mother, nor has he placed it on the market, so that her share of the net proceeds of sale can be realised and applied for her benefit, nor has he offered to buy out her share; and
doing nothing is not an option. It is not in Margaret’s best interests.
I am not going to appoint Susan, because, having already done a U-turn, she has decided that she doesn’t want to be appointed as a deputy, after all.
I intend to appoint Tina as her mother’s deputy for property and affairs because:
she is willing to act;
she is able to act;
she has completed a satisfactory deputy’s declaration;
she lives nearby and is able to visit her mother regularly;
she has her own property in Spain and goes there during the school holidays, and would be in a position to arrange for her mother’s villa to be sold or let;
she is on good terms with her siblings, other than Stephanie;
she is also on good terms with the management and staff at the care home;
although she is neither aggressive nor confrontational, she is not a pushover, and has sufficient strength of character to stand no nonsense from either her siblings or the staff at the care home.
her services will be gratuitous; and
I genuinely believe that she has her mother’s best interests at heart.
The order appointing her as deputy will include a clause authorising her to take whatever steps are necessary or expedient in accordance with the laws of Spain to sell or let the villa in Orihuela.
Costs
Stephanie paid a fee of £400 for making this application. She also paid Burt Brill & Cardens’ bill for £463.68 for the provision of legal services in connection with some preliminary meetings before making the application.
Although her application was unsuccessful, these costs were properly incurred and I see no reason for departing from the general rule (rule 156 of the Court of Protection Rules 2007) that they should be paid from Margaret’s estate.