The court dealt with the matter as a reconsideration of an order under rule 89 of the Court of Protection Rules 2007 rather than an appeal.
HS has Huntington’s disease, a genetic neuro degenerate to disorder which is incurable and ultimately leads to death. Life expectancy is usually 10 to 20 years after symptoms first appear. HS is at the fifth stage of the progression of the disease, namely the advanced stage, which normally requires professional nursing care and complete support for daily living. HS has two professional carers.
In 2005 HS executed an enduring power of attorney appointing RA, her former partner, to be her sole attorney and conferred upon him general authority to act on her behalf in relation to all her property and affairs. The EPA was registered on 26 September 2005. HS’s property comprised state benefits of Income Support and Disability Living Allowance and modest savings of about £3,300, half of which was to be used as a deposit for a motability vehicle and the other half for a short holiday with her carers.
On 23 August 2005 HS made a living will in which she appointed RA to be her healthcare proxy. This was made in the presence of a GP who witnessed his signature of the bottom of this document.
There had been previous proceedings in the Court of Protection in 2013 involving RA’s management of HS’s health care, in particular her feeding. Essex County Council applied to the court for an order revoking both the EPA and the living will but a consent order was entered into in October 2013 whereby the local authority withdrew its application and a declaration was made as to HS’s best interests to continue to live in the same home as RA and CA. RA also agreed not to provide HS with any care including personal care medication, feeding or handling.
In July 2014 however the Public Guardian made an application to the court to revoke the EPA and for Essex County Council to be appointed as deputy in respect of HS’s property and financial affairs. The reason for that was concern in a written document by the Court of Protection Visitor that despite a request RA had failed to keep professional accounts and had accepted he had allowed a crossover of funds. The Court of Protection Visitor concluded that RA had failed to comply with his duties as attorney.
The proceedings commenced. Although orders had been made directing papers to be served on RA no response was received by 29 October 2014. Senior Judge Lush made an order revoking the EPA as there had been no response by either RA or Essex County Council. On 10 December 2014 the deputy’s declaration from the council was received and so Essex County Council was appointed as HS’s deputy for property and affairs.
It subsequently transpired that HS’s son, CA, had filed an acknowledgement of service in August 2014 in which he objected to the application and asked to be joined as party to the proceedings. He had also filed a witness statement dated 10 September 2014 in which he acknowledged his father RA’s deficits in managing his mother’s affairs but said he did not believe that RA had done anything morally wrong and “My mother has never wanted for anything and, when she has stated that she wants something, my dad provided as soon as he possibly could. I have often seen him take money from his own wallet if her purse was empty and he didn't have time to go to the cash machine. However I would treat her finances in a more professional manner and I’m fully capable of looking after them”. This application by CA was also supported by Julie Anderson, a nurse consultant in mental health. RA then filed three witness statements in which he was critical of Essex County Council and his involvement with him maintaining that were it not for him HS would have been moved to residential care years ago.
Senior Judge Lush was totally unaware of these documents when he made the order revoking the EPA on 29 October 2014.
At the reconvened hearing RA no longer objected to the revocation of the EPA but supported CA’s application to be appointed as deputy instead of the council. By the time of the hearing the OPG had formed a favourable impression of CA and had no objection to the appointment of CA as HS’s deputy for property and affairs.
The court considered the powers to appoint a deputy (section 16 (2 ) Mental Capacity Act 2005) noting that the panel deputy is a deputy of last resort and should only be appointed in cases where there is no other suitable person who was willing to act (paragraph 46). Re-DT  EWCOP 10 was considered (the cost of a panel deputy in a fairly straightforward case would roughly be £6,100 during the first year of appointment and about £4,000 in the second and subsequent years.) Given HS’s limited income and limited savings it was far better that the savings be used for motability vehicle deposits and holidays rather than to pay for the services of a panel deputy.
CA was appointed as deputy for his mother’s property and affairs. HS and RA, whilst unmarried, were like most couples and had a joint account and there was no question of any misappropriating of funds and therefore no need for a deputy to pursue him for recovery of funds.
The appointment of Essex County Council as deputy was inappropriate in the circumstances given the history of the family’s contentious relationship with the council social services team. The appointment of a panel deputy would be completely disproportionate.
A pragmatic decision in a case involving very limited funds and the court, having viewed the proposed deputy, CA, formed the view consistent with that of the nurse consultant in mental health. The decision reiterates that a panel deputy is one of last resort and should only occur where there is no other suitable person who was willing and able to act.
In such cases the key issues will be:
- is there anyone willing to act;
- are they suitable (the suitability test being that set out in section 16 (2) Mental Capacity Act 2005);
- in the absence of any good countervailing reason it is in the best interests of the person who lacks capacity to appoint a relative or close friend in preference to a stranger.
Read the full text of the judgment on Bailii