P was a young women aged 26 years, having been born a month premature on 21st December 1988. P was stillborn at birth and did not start breathing until 15 minutes after delivery. She was formally diagnosed as autistic at the age of 5 years. P has cognitive functioning and adaptive skills in the extremely low range. P further has almost unintelligible speech and has very limited communication skills.
The parents wished to put in place successive deputies in the event they were no longer able to carry out their deputy duties.
The successive deputies proposed were the mother’s two younger twin sisters and a young person who had met P at college several years earlier and was now a paid carer once a week.
The Public Guardian (‘OPG’) was directed under section 49 of the Mental Capacity Act (‘the Act’) to provide the court with a report to assist the court. In turn the OPG sought a report from the Court of Protection Special Visitors, Dr Peter Carpenter a Consultant Psychiatrist.
The OPG further sought assistance from the Building Societies Association (‘BSA’) as to how such an order containing successive deputies would work in practice. (In paragraph 32 the court sets out the difficulties that the BSA envisaged with such an order.)
The OPG’s views and concerns was that there were too many ‘what ifs?’ because it was unknown whether or not the deputies would have the skills at a future date to carry out the deputies’ duties, or whether they would actually want to carry out those duties at some future date (see paragraphs 34 to 36). Further, appointments of deputies should be for the shortest time possible. The OPG also raised the concern that there was nothing in the MCA or the Rules, or Practice Direction, governing the procedure to be followed on a successive appointment, unlike section 13 of the Act in relation to replacement attorneys.
Dr Carpenter provided a general overview on people with autism (paragraphs 26 to 28), providing an opinion that for a personal welfare deputy to be appointed it would be in P’s best interest to have someone appointed who had a greater knowledge of P’s life and emotional state, and supported the idea of a family member being appointed. (Dr Carpenter’s comments in relation to P’s specific circumstances are found in paragraphs 29 to 31.)
The court considered the provisions of section 16(4)(b) which allows the court to appoint a deputy, although the decision of the court is preferred, and the powers should be limited in scope and duration as are practicable. Section 19(5) allows the court at the time of appointing a deputy to consider appointing someone to succeed the existing deputy. The court considered the contradicting terms of the two sections.
It addressed section 4: the Best interests test; and undertook a balance sheet exercise of the advantages and disadvantages (see paragraphs 47 to 49).
The court concluded that section 16(4)(b) trumps section 19(5) on the basis that it is the principle which the court must have regard to when assessing whether or not it is in P’s best interest to appoint a deputy. It concluded that section 16(4) is more compliant to the United Nations Convention on the Rights of Persons with Disabilities (‘UNCRPD’).
It concluded that section 19(5) is simply a discretion that the court has once it has already appointed a deputy.
Although the disadvantages in the balance sheet slightly outweighed the advantages the court allowed the application. The factor of magnetic importance in this case was that the appointment of successive deputies will give P’s parents a peace of mind which will ultimately benefit P.
The court added to the proposed order for the OPG to be provided with any death certificate or evidence of incapacity rather than the court (see paragraph 48(c)).
When a court makes an interim appointment the court rarely imposes a time frame on the appointment. The court stated that the average length of a court appointed deputy is 3 years and 9 months. It looked at the Law Commission’s Report number 231 published on 28th February 1995 paragraph 8.43; Consultation Paper Number 128, paragraphs 6.20 to 6.22; referencing the degree of anxiety felt by elderly carers of young disabled persons and what would happen to them when they gone; and that the powers over another human being should not be passed on by testamentary writing as if that person was an asset or property. The consultation papers looked at time limiting orders so as to undertake the least restrictive option.
The court also considered the Mental Capacity Act Code of Practice at paragraph 8.44, again looking at the successor deputies and that it may be useful in situations where the deputy is elderly.
The court concluded that the normal procedure of appointing deputies ‘until further order’ and no time limits satisfied the requirements of Article 12.4 of the UNCRPD for “regular review by a competent, independent and impartial authority” due to the supervision of deputies by the Public Guardian.The OPG raised concerns regarding the amount of security the successors would be required to obtain, especially if the parents leave their estate to P absolutely rather than under trust. Along with this consideration, the issue over how the successive deputies will overcome anticipated issues with the banks and building societies was not addressed. It is of course outside the ambit of the court to deal with these at this stage but it is a practical matter that does need to be addressed and in time these issues may be examined through the courts and further guidance will be forthcoming.
The court hoped that the order would provide the successive deputies with a ‘stronger sense of responsibility and commitment’ towards P and that they would ‘faithfully fulfill their responsibilities when the time comes for them to take over’.
Read the full text of the judgment on Bailii