The Patient (“P”) is a 78 year old man. P’s wife died in 2012.
P’s has one son, VL aged 54, and two daughters, JD, aged 51 years and LA who is 43 years. VL’s partner is SJ.
After retirement P and his wife moved to Spain. After some mini strokes they moved back to England and resided with VL and SJ.
With the agreement of JD and LA, SJ gave up her job to become P’s full time carer. They also agreed that she would be paid £400 a week from P’s funds, and that VL and SJ could receive £100 per week for his board and lodgings. P remains living with VL and SJ.
On 10th November 2014 JD and LA objected to VL’’s application seeking that all three should be joint deputies or that a third party be appointed with VL so that they are kept informed of P’s finances and welfare.
Frictions between the siblings began in August 2012. There had been mutual allegations of financial abuse, and JD and LA had reported VL and SJ to Kent County Council, who investigated and dismissed the complaints.
JD’s and LA’s main concerns were lack of communication and transparency.
VL stated that if either one or both of his sisters were also appointed as deputy it would be simply unworkable. VL stated that they were just interested in P’s money and not his welfare. VL and SJ had looked after PL for the last two and a half years and there was no need to incur panel deputy costs of approximately £6,000 which was estimated for the first year’s costs (referring to Re DT  EWCOP 10).
The court relied on the report of P’s GP and a consultant psychiatrist to determine that P lacked capacity.
The court set out the duties and obligations of a deputy. It made the parties aware of section 19(9) of the Mental Capacity Act 2005 (‘the Act’) that spells out what the court may require a deputy to do. The court may require the deputy to provide security as the court thinks fit; and to submit reports to the Public Guardian at times that the court asks.
Section 16(8) of the Act allows the court to revoke the deputy’s appointment if is satisfied that the deputy is behaving or behaved in a way that contravenes his authority and not in P’s best interests.
The court accepted that VL had looked after P satisfactory for the last two and half years and would give him the benefit of doubt and appoint VL as sole deputy.
The court required VL to obtain and maintain security of £550,000. The annual premium of 0.2% of that sum (£1,100) was to be payable from P’s estate to secure his assets to that value.
VL was to also send the reports he was required to make to the Office of the Public Guardian (‘OPG’) to be sent to his sisters.
The payment of £400 per week paid to SL was to be made part of the court order.
It became apparent during the hearing that neither of the parties were fully aware of the duties of a deputy. The court helpfully set out the functions of the OPG pursuant to section 58 of the Act. The court also referred to the report published by the OPG to Parliament in December 2014: Fundamental Review of the Supervision of Court Appointed Deputies by the Public Guardian. Amongst other things the report sets out the support from the OPG to newly appointed deputies and it emphasises the importance of the reports to the OPG.
The court also referred to the guide published by HM Revenue and Customs regarding payments to carers under a Court of Protection order or from a Trust Fund (Employment Status Manual (‘ESM’)). The payment to SL was made part of the court order for the purposes of the payments being classed as voluntary payments and not income and therefore no tax or national insurance contributions would be due.
Read the full text of the judgment on Bailii