This case highlights how the court is able to manage family members engaged in excessive communication with the deputy and what directions can be sought.
The Patient A is 88 with a long-standing diagnosis of schizophrenia since the age of 17. She received ECT in the distant past and in 1962 underwent a frontal leucotomy at The Priory.
Previous proceedings under the Act’s which preceded the Mental Capacity Act took place and A’s sister B administered her estate. Subsequently B became A’s receiver and ultimately under the MCA became her deputy for property and affairs.
In 2012 when B was in her mid-80s B’s daughter C applied to be appointed as deputy in her place. It was supported by C’s siblings but opposed by their cousin D. On 20 May 2013 the court made an order appointing C as a deputy for property and affairs and due to D’s conduct the court departed from the general rule of costs in property affairs cases and ordered D to pay the entire costs of the proceedings save for £7,500 plus VAT which the court estimated would have been the costs if the application had been unopposed. D applied for permission to appeal and it was listed before the President. However very shortly before that hearing, a new GP examined A and told the family solicitors that in his opinion A had capacity to manage her property and affairs. Accordingly the appeal was conducted on two bases: firstly, jurisdictional due to capacity issues; and secondly, the costs ground - that it was procedurally unfair and wrong.
The President ordered that A be examined by a consultant psychiatrist and directed the hearing as to capacity in relation to managing her property and affairs. Subsequently, a report provided by Prof Robert Howard considered that A’s schizophrenia or a combination of schizophrenia and frontal lobe damage had caused significant impairment of the functioning of A’s mind and brain and as a consequence A was unable to understand, retain and use information relevant to decision-making concerning properties and affairs. The President made a declaration that A lacked capacity and at the time of the hearing lacked capacity in May 2013 to manage her property and affairs. The costs appeal was adjourned to a later date.
The hearing before Senior Judge Lush some 18 months later was that C wished to stand down as deputy and had filed an application seeking that a partner in a well-known London firm of solicitors be appointed in her place. Furthermore, C made an application, once appointed as deputy, that this solicitor exercise A’s power to appoint new trustees of certain settlements and appoint herself as a trustee.
D opposed the application on the grounds of geography (A lives in Yorkshire whereas the proposed deputy works in London), the charging rates for a London solicitor, the proposed deputy was unsuitable on the basis of her legal practice and in particular because she was frequently abroad (denied by solicitor) and that effectively there should also be an enquiry into A ‘s assets (he claimed that A had been deprived of assets and thus income). D later then also asserted that the solicitor was an expert on tax avoidance and furthermore that this solicitor would be called as a witness to give evidence in criminal proceedings which D said should be brought against one of the previously advocated solicitors of D to be appointed deputy of A.
The court applied the checklist in section 4 and section 16 (2 MCA ) noting the discretion the court has as to whom it appoints as a deputy and traditionally preferring to appoint a relative or friend rather than a complete stranger for practical reasons. The court also considered the judgment of Mr Justice Newey in Re Rodman; Long v Rodman and Others  EWHC 347 (CH)  COPLR 433 where it considers the costs charged by a professional deputy. The court found that due to D’s conduct no family member is now willing to act as a deputy and there is no alternative but to appoint a professional. The court found the checklist in section 4 MCA was not particularly helpful on this particular occasion and, looking at the solicitor’s CV and that of the firm, considered that both the solicitor and the firm had considerable know-how in dealing with families such as A’s and private wealth management. In relation to the costs he acknowledged that “whilst the fees were likely to be large it would be quite improbable that they will be excessive because the Senior Courts Cost Office will carry out a detailed assessment of their general management costs on a standard basis each year” (paragraph 50).
Not a particular case of note other than 3 matters:
- Costs of a professional deputy and consideration of the High Court decision in re Rodman;
- In certain circumstances such as these it is preferable to appoint a professional deputy as opposed to a relative or friend – each case will turn on its own particular circumstances;
- Probably most importantly, how a professional deputy deals with a relative who clearly writes lengthy communications for which there are costs implications for the administration of the deputyship. The court at paragraph 51 provided a direction that directed Mrs M “to reply only to communications from D that appear to be relevant to her role as deputy and not reply to any irrelevant communications or to any relevant points that he has raised more than once”. This of course means that a deputy has to read the communications sent, thereby incurring a certain level of costs in order to make a decision as to what is or is not relevant.