J is 95 years old and has had Alzheimer’s dementia since about 2009. She has seven children. J lived in a cottage worth £350,000, before moving to a care home in 2013. J also inherited her late daughter’s estate consisting of a house in Hailsham worth £150,000.
On 10 December 2013, East Sussex County Council was appointed as J’s deputy for property and affairs.
J’s son G applied to be appointed as her deputy for property and affairs jointly with the Council on 2 March 2015. He had not opposed the Council’s application to be appointed in 2013 as he had not thought it in his mother’s best interests to apply himself given that he had not lived in close proximity at the time. G’s circumstances have now changed and he is unhappy with decisions made by the Council.
The Council opposed G’s application. It was noted that G has not visited his mother in over a year and had requested reimbursement for the work he had carried out on J’s behalf dealing with the estate of his late sister. G had previously said he would not charge for his work. Therefore, the Council felt it would be a conflict of interests to appoint G as deputy, as he stands to make a financial gain.
The court allowed the revised application, thereby removing the Council and appointing G as J’s deputy.
The court relied on s.1(5) of the Mental Capacity Act 2005 which 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 considering the repairs to the house in Hailsham, the court relied on Re G(TJ)  COPLR Con. Vol. 403, in which Morgan J said:
“…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.”
This case provides a useful recap of the law:
- Following s.16(7) of the Mental Capacity Act 2005, the court may vary or revoke a deputyship order whenever it is in a protected person’s best interest to do so;
- S.4 of the Mental Capacity Act 2005 sets out the ‘best interests’ checklist’;
- Re AS  COPLR 29: There is a general order of preference when appointing a deputy, namely:
ii. Relative who takes a close interest in P’s affairs,
iii. Close friend or professional adviser,
iv. Local Authority Social Services Department,
v. Panel Deputy.
4. Re P  EWHC 1592 (COP): The starting position should be that, in the absence of family dispute or other evidence which queries capacity to carry out duties, the court ought to approach such an application with considerable openness and sympathy.
5. Paragraph 8.58 of the Mental Capacity Act Code of Practice: “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… They cannot use their position for any personal benefit, whether or not it is at the person’s expense.”
6. One of the principal functions of the court is to manage conflicts of interest to ensure that any act done or decision made of a person who lacks capacity is done so in their best interests (see para. 8.59 of The Code of Practice and s.19 of the Mental Capacity Act 2005 for additional guidance).
Read the full text of the judgment on Bailii