JW, Re

This began as an application by a family member to be appointed as a joint deputy for property and affairs with the existing deputy, East Sussex County Council. When it became apparent that the Council was unwilling to act jointly with him, the applicant revised his application and asked the court to remove the Council as deputy and to appoint him in its place.

These proceedings relate to Joan, who was born on 23 September 1920 and is now 95.

Her husband died in 2001.

She had seven children, namely:

Joan used to live in a cottage in Uckfield, East Sussex with her two youngest children, Sheila and Desmond, but since 2013 she has been a resident in a local care home.

She has had Alzheimer’s dementia since about 2009.

Her cottage in Uckfield is worth roughly £350,000, and she has also inherited the estate of her late daughter Daphne, who died intestate. Daphne’s estate consists principally of a house in Hailsham, which in its current state of repair is worth about £150,000.

On 10 December 2013 the authorised officer for property and affairs deputyships of East Sussex County Council was appointed as her deputy for property and affairs.

On 2 March 2015 Joan’s son Geoffrey applied to be appointed as her deputy for property and affairs jointly with the Council. Greenwoods Solicitors LLP, Cambridge, acted for him in connection with the application.

On 26 June 2015 Geoffrey made the following witness statement in support of his application:

On 15 July 2015 Zena Boniface of East Sussex County Council Deputyship Team filed an acknowledgment of service opposing the application. The grounds on which the Council objected are set out later in paragraph 14. At section 3.2 of the acknowledgment of service, Mrs Boniface stated that “ESCC only act as deputy for clients where there are no suitable family members to take on the role.”

On 21 July 2015 I made an order requiring:

On 16 September the Council filed an application notice requesting further time in which to respond to the application, and on the same day I made an order extending the Council’s time limit to 9 October and changing the date of the hearing from 8 October to 28 October 2015.

On 7 October 2015 Zena Boniface submitted a witness statement, in which she said as follows:

“East Sussex County Council (‘ESCC’) believes that it is in Joan’s best interests for them to remain her sole deputy for property and affairs.

ESCC applied to be deputy following a Safeguarding Vulnerable Adult Investigation and referral by the Social Work Team. Joan’s care fees had not been paid by her son Desmond, who was her appointee, and her care home placement was at risk. At this time her son Geoffrey did not want to take on responsibility for looking after his mother’s finances.

ESCC are Joan’s Department for Work and Pensions appointee and ensure that she is in receipt of the benefits she is entitled to and that her contribution to her care costs is correctly assessed and paid in order to protect her care home placement.

ESCC have contact with the care home where she resides to ensure that Joan has access to her personal allowance and that her needs are being met. The care home manager recently informed ESCC that, as far as she is aware, Geoffrey has not been to visit Joan for over a year.

Joan is a 94 year old lady who has a formal diagnosis of dementia. She has suffered a generalised decline of her cognitive abilities and seems now to have entered end stage dementia care. ESCC feel that a change in the current financial arrangements would not be in her best interests at this time.

Geoffrey says in his statement that his siblings are in agreement to his appointment as deputy but he has not provided any evidence to support this.

Desmond resides at Joan’s property with their sister Sheila, who he provides support to. Sheila has a learning disability and receives services from ESCC Adult Social Care. ESCC are also her deputy for property and affairs and manage her finances. When Joan lived at home with Desmond and Sheila she did not charge them rent, and therefore ESCC have continued to support her wishes in this matter.

Sheila recently suffered with ill health and spent some time in hospital and residential care. On her return home the deputyship team worked with the Adult Social Care Team to make [the cottage in Uckfield] safe and habitable for Sheila’s return. This included the installation of a heating system and arranging for essential repairs to be undertaken, which I believe Geoffrey assisted with.

ESCC charge Joan fixed costs for their work as deputy as prescribed in the Practice Direction.

Geoffrey says he will not charge for his work. However, he has put in a claim for charges for the work he has carried out on Joan’s behalf in dealing with the estate of his sister Daphne. He has charged for his time at £150 per day, a total amount of £3,150. He has also charged £2,192.40 for his travel costs.

Geoffrey’s full request for reimbursement for the cost of his expenses is £13,757.20. ESCC have asked him to provide receipts before reimbursement can be made from the estate and he has been reimbursed for the funeral costs and boiler repairs as these receipts have been provided. Not all receipts have been provided and there are insufficient funds in the estate until the property is sold for any further reimbursement to be made.

Geoffrey’s dispute with ESCC acting as deputy began following the decision made by the deputy to sell his late sister’s property in Hailsham in its current state. Geoffrey had submitted a quote for £36,500 for the costs of works to the property. For transparency and best value SSCC policy is to obtain 3 independent quotes for the cost of any works. In this case they were unable to do so as the cost of works cannot be paid until after the property has been sold.

ESCC feel that it would be a conflict of interest for Geoffrey to be appointed deputy, as he stands to make a financial gain from the cost of the building works to his late sister’s property and the reimbursement of his time and travel costs in dealing with her estate.”

On 27 October 2015, the day before the hearing, Geoffrey’s solicitors, Greenwoods LLP, filed an application notice stating:

“We ask the court to appoint Geoffrey as the sole deputy for Joan rather than as a joint deputy acting with East Sussex County Council (ESCC).

We believe the appointment of a family member as the deputy for Joan is in her best interests and do not believe there is any requirement for ESCC to continue acting. ESCC have stated they only act in circumstances where an appropriate family member cannot be appointed.

Our initial application requested Geoffrey to be appointed deputy with ESCC but we do not feel this relationship will work and is not in the best interests of Joan.”

The hearing took place on 28 October and was attended by:

Zena Boniface explained that Joan’s cottage in Uckfield is disregarded for the purpose of assessing her care fees because her disabled daughter, Sheila, is living there. However, because Joan has inherited Daphne’s estate, she will become self-funding in respect of her care fees. The Council hasn’t yet worked out the exact figures involved.

In his position statement on behalf of the applicant, Alexander Drapkin said:

“It is submitted that it is in Joan’s best interests for the Council to be removed as deputy and for Geoffrey to be appointed:

(1)

Geoffrey feels that relations between him and the Council have broken down and that it is not in Joan’s best interests for her deputy to have such a poor relationship with her family.

(2)

Geoffrey is concerned that the decisions that the Council have made, particularly in relation to their disinclination to refurbish [Daphne’s house in Hailsham], do not have the effect of maximising Joan’s estate and are, therefore, not in her best interests.

(3)

Geoffrey also has historic concerns over the way that the Council have failed to deal with necessary repairs at [the cottage in Uckfield].

(4)

Geoffrey is also concerned that he has not been told whether or not the Council have insured both properties.

In relation to the removal, the court will be aware that, although there are two specific circumstances under s. 16(8) Mental Capacity Act 2005 where the court can remove a deputy, the court’s power to do so is not confined to these circumstances and it may vary or revoke a deputyship order whenever it is convinced that it is in a protected person’s best interests to do so. This is the effect of s. 16(7) MCA 2005.”

Mr Drapkin proceeded to discuss the ‘best interests checklist’ in section 4 of the Mental Capacity Act, and in particular subsections (6) and (7), which he acknowledged were of limited assistance on this occasion, and then stated:

“The court will be aware of Re AS [2013] COPLR 29, in which the court outlined a general order of preference for the appointment of a deputy. Following a spouse or partner, the list is headed by any other relative who takes a close interest in P’s affairs. A local authority’s Social Services Department is generally the penultimate choice before a panel deputy and after a close friend or professional adviser. This list is clearly not to be rigidly applied but does give an indication of the appropriate attitude towards appointments.

The judgment in Re AS quotes from another judgment of Senior Judge Lush, Re B (unreported, 15 August 2011, No. 11579443), which was an application to remove a panel deputy and replace him with a family member. The Senior Judge considered the unity in the family; the nature of the court’s approach to deputies as expounded in Re P [2010] EWHC 1592 (COP) by Hedley J; and the approach under Australian legislation of Kirby P in the New South Wales Court of Appeal to the same matter, specifically in a removal and appointment context.”

The quotation from Re B was as follows:

“As I understand it, the entire family unanimously supports IB’s application to be appointed as deputy in place of Mr C. The question arises, therefore, whether there is still really a need for a deputy of last resort.

In Re P [2010] EWHC 1592 (COP) Mr Justice Hedley suggested that “the court ought to start from the proposition that, where family members offer themselves as deputies, then, in the absence of family dispute or other evidence that raises queries as to their willingness or capacity to carry out those functions, the court ought to approach such am application with considerable openness and sympathy.” Michael Kirby, the President of the Court of Appeal in New South Wales, said much the same thing in Holt v. The Protective Commissioner (1993) 31 NSWLR 227. His remarks are even more pertinent because, whereas Hedley J was commenting on the court’s discretion on an initial application for the appointment of a deputy, Kirby P was considering the somewhat different discretion that arises on an application to remove a deputy.”

Mr Drapkin concluded his position statement by saying:

“In Re B it was decided that, in the context of family unity, there was in fact no longer any need for the professional deputy’s appointment to continue. This was the case even though various conflicts remained between the family member who was appointed in his place and the protected person.”

I propose to allow Geoffrey’s revised application and shall appoint him as Joan’s deputy in place of East Sussex County Council.

My main reason for appointing him is that I think it would be sensible to repair and renovate the house in Hailsham that Joan inherited from her daughter Daphne so that it can be sold to best advantage, and I am prepared to give it a try.

Geoffrey produced a letter dated 25 January 2015 from Peter Brazier of Simon Marden Estate Agents, who said:

“Thank you for your kind hospitality when showing me around the property yesterday. As discussed, I feel that the property has some extremely saleable features, including the ideal location, being situated within easy reach of Hailsham town centre along with having substantial gardens to the rear of the property. Whilst the property does require complete refurbishment and the gardens cleared of all overgrown vegetation and tidied, it could be marketed in its current condition to investor buyers. Alternatively, you may prefer to carry out the renovation yourself and then market the property. …

If the property were to be marketed in its current condition, given the present market and comparing similar properties recently sold and currently being marketed within the area we would expect to achieve offers in the region of £145,000. However, if the property were to be marketed after refurbishment, we would expect to achieve a sale between £200,000 and £220,000.”

Arguably, Joan will never benefit personally from this transaction, but her estate will, and she has six children, all of whom are either pensioners already or are rapidly approaching old age.

Section 1(5) of the Mental Capacity Act 2005 provides 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.”

In Re G(TJ) [2010] COPLR Con. Vol. 403, Mr Justice Morgan said that:

“… the word ‘interest’ in the best interests test does not confine the court to considering the self-interest of P. The actual wishes of P, which are altruistic and not in any way directly or indirectly self-interested, can be a relevant factor. Further, the wishes which P would have formed, if P had capacity, which may be altruistic wishes, can be a relevant factor. It is not necessary to establish that P would have been aware of the fact that P’s wishes were carried into effect. Respect for P’s wishes, actual or putative, can be a relevant factor even where P has no awareness of, and no reaction to, the fact that such wishes are being respected.”

Zena Boniface concluded her witness statement by saying that:

“ESCC feel that it would be a conflict of interest for Geoffrey to be appointed deputy, as he stands to make a financial gain from the cost of the building works to his late sister’s property and the reimbursement of his time and travel costs in dealing with her estate.”

It was entirely reasonable of her to voice this concern and it merits a detailed response.

Article 12.4 of the United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’), which the United Kingdom ratified in 2009, provides that:

“States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.”

Conflicts of interest are ubiquitous in any mental capacity jurisdiction and it would be unrealistic, if not impossible, to eradicate them entirely. I am not sure that the CRPD expects us to do that, anyway. It simply requires States Parties to “ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law.”

Paragraph 8.58 of the Mental Capacity Act Code of Practice says that:

“A fiduciary duty means deputies must not take advantage of their position. Nor should they put themselves in a position where their personal interests conflict with their duties. For example, deputies should not buy property that they are selling for the person they have been appointed to represent. They should also not accept a third party commission in any transactions. Deputies must not allow anything else to influence their duties. They cannot use their position for any personal benefit, whether or not it is at the person’s expense.”

Notwithstanding this definition, in practice, all professional deputies profit from their position because they act for reward, and the history of Court of Protection practice over the last hundred years has been a gradual relaxation of what was once an absolute prohibition on the appointment of solicitors as deputies on account of the conflict of interests.

Sir Henry Theobald in The Law relating to Lunacy (1924) stated at page 398 that:

“The solicitor in the matter cannot be appointed (as receiver). Nor should a clerk to the solicitor in the matter be appointed.”

Mills and Poyser’s Lunacy Practice, which was published ten years later in 1934, was slightly less adamant. It stated on page 18 that:

“The solicitor in the matter, or a clerk in his employ, are not ordinarily eligible for the office of receiver because of a possible divergent interest that might arise through the conflict of their own interest with their duty to the patient. (Re Lloyd, 12 Ch.D. 447; Re Cohen, E.E., 1932 (unreported)).”

Heywood & Massey Lunacy Practice, sixth edition (1939), at page 99, suggests that five years later there may have been a further mollification of this principle:

“It is not the practice to appoint the solicitor (or his clerk) in the matter (Ex p. Pincke (1817) 2 Mer. 453; see Re Lloyd (1879), 12 Ch. D. 447), though occasionally a solicitor has been appointed on his undertaking not to charge profit costs for work not usually requiring professional assistance.”

The same principle applied to the appointment of local authorities as deputies. Originally, it was proscribed because of the conflict of interests. Theobald, op. cit., stated that:

“The clerk or other officer of the guardians of the poor who are maintaining the lunatic should not be appointed. Such persons naturally look to the interests of the guardian and not to that of the lunatic.”

Yet, fifteen years later, in Re T.R.M. [1939] 1 Ch. 260, at page 267, Sir Wilfrid Greene, Master of the Rolls, observed that:

“Accordingly the very convenient practice was considered and adopted of appointing as receiver the public assistance officer concerned – if he chose to apply. The benefit of that is this: first of all, the pension does not lapse, because there is some person there with authority to receive it. Then, from the point of view of the local authority the benefit of that procedure is that the pension is obtained and not lost, and the rights of the local authority are preserved in the same way as creditors would be preserved under the ordinary jurisdiction in mental cases. We are told that it has been adopted without question in some two thousand cases, but that would not debar this court from saying that the order was wrong if we were convinced that it was wrong.”

The Court of Protection is still wary of potential conflicts of interest when appointing a local authority as deputy. As paragraph 8.60 of the Mental Capacity Act Code of Practice suggests:

“Sometimes the court will consider appointing the Director of Adult Services in England or Director of Social Services in Wales of the relevant local authority as a deputy. The court will need to be satisfied that the authority has arrangements to avoid possible conflicts of interest. For example, where the person for whom a financial deputy is required receives community care services from the local authority, the court will wish to be satisfied that decisions about the person’s finances will be made in the best interests of that person, regardless of any implications for the services provided.”

In Joan’s case, in addition to the usual conflict of interests over funding issues, a further conflict arises because East Sussex County Council also acts as deputy for her daughter Sheila, who is currently residing rent-free in her cottage in Uckfield.

Conflicts of interests frequently arise in family situations, but that doesn’t mean that a family member is automatically disqualified from being appointed as a deputy.

In the Australian case, to which Mr Drapkin referred in his position statement, Holt v Protective Commissioner (1993) NSWLR 227, the Court of Appeal of New South Wales held that:

“Ordinarily, a person who would face a conflict of interest and duty would not be appointed a manager of a protected person’s estate. However, in some family situations, inter-related property interests may present such conflicts. Sometimes they will be more apparent than real. They do not necessarily provide an absolute bar to appointment as a manager for otherwise this would exclude from consideration a range of family members in every other way appropriate.”

In some jurisdictions, family members are specifically given preferential treatment, even though it is acknowledged that there may be a conflict between their interests and those of the person for whom they are acting as a substitute decision-maker. For example, section 7 of Alberta’s ground-breaking Dependent Adults Act, 1976 (Alta.), c. 63, provided that:

“7(1) The Court may appoint as a plenary guardian or partial guardian of a dependent adult, any adult person who consents to act as guardian and in respect of whom the Court is satisfied that:

(a)

he will act in the best interests of the dependent adult,

(b)

he will not be in a position where his interests will conflict with the dependent adult’s interests, and

(c)

he is a suitable person to act as the guardian of the dependent

(d)

he is a resident of Alberta.

(1.1)

Notwithstanding subsection (1)(b), a person shall not be considered to be in a position where his interests will conflict with the dependent adult’s interests by reason only of the fact that the person is a potential beneficiary or a relative of the dependent adult.”

Although it is not expressly stated in the Mental Capacity Act 2005, one of the principal functions of the court is to manage conflicts of interest to ensure that any act done or any decision made on behalf of a person who lacks capacity is done or made in their best interests.

The classic way of managing the conflict of interests when appointing solicitors as deputies is to require that their costs be assessed by the Senior Courts Costs Office to ensure that they don’t abuse their position.

To some extent, the avoidance of conflicts of interests is built into the principles upon which the Act is based. The Code of Practice states at paragraph 8.59 that:

“In many cases, the deputy will be a family member. In rare situations, this could lead to potential conflicts of interests. When making decisions, deputies should follow the Act’s statutory principles and apply the best interests checklist and not allow their own personal interests to influence the decision.”

Another way of managing a conflict of interests is to appoint more than one deputy. For example, in a British Columbia Supreme Court case, Re Taylor (1982) 13 E.T.R. 168, Robinson LJSC held (at page 172) that:

“After careful consideration of the judicial concerns where there is an actual or potential conflict of interest and duty, I am not presently disposed to remove the present [deputies]. I am influenced in this decision by the fact that there are two [deputies], and each can be considered an effective safeguard against the temptation of the other succumbing to its or her particular interest that might prejudicially affect the patient. Had either one only of the two [deputies] been appointed, I would have been more sympathetic to the appointment of an additional [deputy], or the substitution of a corporate trustee having had no previous relationship whatsoever with the patient, and having no debtor-creditor relationship with the patient.”

Unfortunately, in Joan’s case, there is no prospect of one deputy acting as an effective safeguard against the conflicts of interest of the other, because Council has refused point blank to act jointly with Geoffrey.

Section 19 of the Act contains several safeguards whereby the court is able to manage conflicts of interests. For example:

I propose to control the conflict between Geoffrey’s interests and Joan’s by providing the following appropriate and effective safeguards to prevent abuse: