The issues raised included:
- the court’s ability to make an order appointing a welfare deputy notwithstanding no application filed before the court;
- Section 16 (6) MCA and the court giving effect to the overriding objective;
- dealing with the matter expeditiously and proportionately and by saving expense.
P, aged 63, suffers from fronto- temporal dementia and has done since 2012. Between 2014 and January 2015 P was compulsorily detained under sections 2 and 3 of the Mental Health Act. In 2011 she executed an enduring power of attorney in Canada in which she appointed her husband to be an attorney, failing whom her two children – Kate and James. On the same date she also made a will in Canada appointing her husband, failing whom her children to be executor and gave everything to her husband, failing whom her children in equal shares. P has assets both in Canada as well as in the UK. In Canada assets are managed by way of agency agreements with the attorneys Kate and James.
On 27 November 2014 Kate applied to be appointed as P’s deputy for property and affairs in the Court of Protection. The application highlighted ill-health of P’s husband (he has Parkinson’s and receives 24-hour care).
The application was opposed by P’s sister Jane who suggested that “another deputy be appointed - if necessary a professional deputy or director of social services.” She filed a witness statement asserting a number of matters in which she alleged that Kate was deficient in terms of actions and behaviours in the past and claimed that P had been estranged from Kate between 2001 and 2014. P’s husband Alan supported Kate’s application as did her brother James. Kate’s third witness statement attached a letter from Portsmouth City Council in which they considered it to be “logical” that she should be appointed deputy – Kate was in fact her mother’s nearest relative when she was detained under the Mental Health Act 1983. The allocated social worker for P supported the application commenting that Kate was “a strong advocate” of her mother. Kate’s witness statement also referred to the fact that the City Council had requested she make an application to be appointed as her mother’s deputy for health and welfare as well as finances. Kate in her witness statement also highlighted the cost effectiveness of her being appointed her mother’s deputy as opposed to a panel deputy.
The court considered sections 1 to 4 Mental Capacity Act and also section 16 (2) which provides that the Court of Protection may make any decision on P’s behalf itself or may appoint a deputy to make decisions on P’s behalf. The court noted that the Court of Protection has traditionally preferred to appoint a relative or friend as deputy as long as it was satisfied it was in P’s best interest to do so rather than a complete stranger. At paragraph 4 of the judgment it sets out the criteria where the court would not countenance appointing a family member as a deputy. The court highlighted the decision of Re DT  EW COP 10 concerning the costs of professional deputies and cited paragraph 62 of that judgment in which it was stated “it is likely, therefore, that in this case, the panel deputy’s costs would be roughly £6,100 during the first year of appointment, and approximately two thirds of that sum in the second and subsequent years “.
The court considered the evidence of conflict between Kate and her aunt Jane and on balance preferred that of James. The court noted that P, when she had capacity make a will and an enduring power of attorney, appointed her husband to be executor and attorney failing whom her children. The court was satisfied that her husband could no longer act on P’s behalf and as James lived and worked in Canada the logical choice to manage P’s property and affairs in England was Kate. This also reflected P’s wish when she still had capacity.
Unusually the court also appointed Kate as P’s deputy for personal welfare even though she had yet to make the application. The court considered it had power to do so applying section 16 (6) of the Act which confers a wide discretion:
“ without prejudice to section 4, the court may make the order, give the directions or make the appointment on such terms as it considers are in P’s best interest, even though no application is before the court for an order, directions or an appointment on those terms “.
The court noted that the City Council believed there was a pressing need for a personal welfare deputy and was intending to apply itself in the event that Kate did not make the application.
The court considered that by making the appointment now, the court is giving effect to the overriding objective by dealing with the matter proportionately and by saving expense.
This is yet another example of family members being in dispute particularly concerning issues regarding family finances and the position of the incapacitated person. Whilst an order had been made at an early stage (“the parties to inform the court by 5th May whether they had managed to reach a mutually acceptable agreement way of mediation, failing which… “) and a timetable was set for filing of evidence, is plain that mediation presumably was not successful. This may be surprising to many bearing in mind the existence of the will and the enduring power of attorney executed when P had capacity and the terms in which she appointed both her children as such as substitute attorneys. The fact that she did not appoint her sister Jane might, one would have thought, have been a relevant consideration at a very early stage in this litigation.
Read the full text of the judgment on Bailii