The court considered whether or not it was appropriate to consider appointing someone as deputy if they lived outside the jurisdiction.
P was born on 28th August 1937 and is a 78 year old woman who has lived in a residential care home since 16th May 2013. P has Lewy body dementia.
P’s daughter Lori lives in the United States with her 3 children and 7 grandchildren.
P’s assets are modest and under £11,000.
The main objection came from P’s niece, Paula. Paula was concerned that when P became ill the family were unable to contact Lori for 10 days before she responded. Paula stated that it was left to the family in England to make the decision for P to reside somewhere safe. As Lori resided in the United States Paula had concerns about how the court would supervise Lori and prevent abuse of P’s finances.
Paula further stated that P had told her that she had been supplementing Lori’s income for a long time and did not wish for Lori to be involved or know about her finances, and it was Paula who dealt with P’s finances and decisions regarding P’s welfare, and that P had wanted to provide Paula with a Lasting Power of Attorney (‘LPA’).
Paula stated that Lori was happy for Paula to become deputy for P until she found out that there was £7,700 in an ISA.
Paula felt that neither she nor Lori should be a deputy from the local authority.
Lori stated that location should not prevent her from being P’s deputy. Lori explained that the money provided by P was for the children’s and grandchildren’s birthday presents as it was becoming too expensive for P to buy them and post them.The bank statements did not show a consistent sum of money being provided to Lori.
Lori stated that in her conversations with P, P was concerned and felt pressured by Paula, and that she had become controlling. P did not want anything said to Paula as she did not want to start any problems.
Lori provided exhibits to her evidence from the care home staff and the local authority. This stated that Lori had been in regular contact with them and calls to speak to P 2-3 times per week as well as twice-yearly visits. P is happier when she sees Lori. P was aware of the proceedings and could not understand why the objectors were objecting to Lori as she was P’s daughter and that she had no money in any event. It was stated that Lori had kept the local authority informed of all developments and that they had no contact from other family members.
The court considered section 16(2) of the Mental Capacity Act 2005 (‘the Act’) for the appointment of deputies; and sections 1 (principles) and 4 (Best Interests).
The court considered Article 8 of the European Convention on Human Rights when considering appointing a family member to be a deputy.
The court considered the previous law relating to appointing a deputy for someone who lives outside the jurisdiction. It paid particular regard to the Canadian case of Quinn v O’Neill (1992) 47 TER 18.
The court stated that with the development and improvement of technological communications, internet banking, and cheap airfares since the previous case law, in the present day with people living far apart this was no bar on someone becoming a deputy even if they lived outside the jurisdiction.
The court referred to the undertakings set out in the Deputy’s Declaration (COP4) with 17 undertakings which would protect P.
P’s wishes and feelings could not be clearer in that she wanted Lori to deal with her affairs.
The court appointed Lori as deputy.
The court had regard to the evidence provided from the care home and the local authority which evidenced that Lori was in full contact and kept the relevant authorities informed of P’s circumstances, unlike the objectors.
P had very little in her estate and it was best for a family member who knows her best to be appointed rather than a deputy.
The court set a security bond of £21,000. This was because the Deputy Bond Service offered this amount for a one-off premium of £98 with no ongoing premiums. Aviva who provides this security does not have a problem with bonding a person who lives outside the jurisdiction.
Read the full text of the judgment on Bailii