AW [2015] EWCOP 16

This case considers an application by two different parties to be appointed as the Patient’s (‘P’) deputy for property and affairs.   

The case also considered the rules regarding reporting the case and the anonymity.

The Facts
The Patient (“P”) was born on 10th September 1916 and is a 98 year old man. P’s wife died in 1982. They had no children.
 
P’s closest relative is DW (who is one of the applicants), his nephew who is 69 years.  

P took comfort in his local church after his wife’s death and towards the late 80s he met MG who was born in 1935 and they became inseparable companions.

MG had a sister, SB who has been married to DB (who is the other applicant) for ten years. DB is 71 years old.

In March 2014 MG was admitted to hospital for several months. This triggered the need for something formal to be set up for P who went into a care centre for respite until June 2014 when he was transferred to a residential care home where he remains.

DB made an application on 9th October 2014, without the assistance of solicitors.

DW made his application on 30th September 2014, with the assistance of solicitors.

Objections
MG did not want to be joined but objected to DW’s application. MG corrected DW’s statement about MG being P’s lodger stating she was P’s partner and that he had proposed marriage on several occasions. MG stated that DW had not seen P for all the time they were together (30 years) until August 2014 when MG’s sister called DW to inform him of P’s deteriorating health. MG supported DB as he was a good friend to P and knew his tastes and needs.

BP who is the daughter of DW’s late brother, and great niece to P also objected to DW’s application. BP stated that she no longer talks to DW and no longer trusts him. BP stated that although she did not know DB she knew he had been in touch with P and MG and was always loyal to P. BP stated that both had genuine interests and felt that both should be joint deputies.

DW’s application came before the court and the court ordered DW and BP to mediate. They did and BP agreed for DW to be P’s deputy.

Unfortunately DB’s application was overlooked. He contacted the court in February 2015 to find out what was happening - this prompted the hearing (by this time DB instructed solicitors).

DW offered DB to be joint deputies but DB rejected this. DB felt DW would become obstructive and would not be in P’s best interests. DB stated that since March 2014 he and SB had been involved with the relevant authorities, sorting out P’s care and accommodation; he had set up a bank account for P’s pension to be paid in to and to pay the buildings insurance on P’s property.  
 
The Law
The court did not address the law in this judgment but referred to its judgment in Re BM [2014] EWCOP B20 and sections 1 to 4 of the Mental Capacity Act 2005 (‘the Act’) which provides that if P lacks capacity to make a particular decision at a particular time, any act done or decision made by someone on his behalf must be in P’s best interests.
 
Section 4 sets out what has to be taken into account when assessing P’s best interests. In this case the court felt it necessary to determine the status of the relationship between P and MG. If MG were to be a friend the court would take note of her views, but if she had been P’s partner for the last 30 years  then greater weight would be added to her views (the court referred to section 4(7)(b) of the Mental Capacity Act 2005 (‘the Act’)).

The court reiterated that nobody has an automatic right to be appointed as a deputy and the court exercises its judicial discretion in P’s best interests having regard to all the circumstances of the case and in particular sections 1 and 4 of the Act.

The court set out the duties and obligations of a deputy. It made the parties aware of section 19(9) of the Mental Capacity Act 2005 (‘the Act’) that spells out what the court may require a deputy to do. The court may require the deputy to provide security as the court thinks fit; and to submit reports to the Public Guardian at times that the court asks.

Section 16(8) of the Act allows the court to revoke the deputy’s appointment if is satisfied that the deputy is behaving or behaved in a way that contravenes his authority and not in P’s best interests.

Decision
The court appointed DB as P’s deputy.

The court did not reveal DB’s identity even though he was not a family member.

Discussion
The court decided that DB was more appropriate as he was able to understand, communicate and establish what was required. When filling out the application form DB was able to provide all the necessary information relating to P’s finances (he had already dealt with the Department of Work and Pensions). DW on the other hand was only able to point to P having a property. The court felt that DB’s ability to understand and deal with the finances was likely to lead to a good outcome for P.

P had appointed DB, along with SB, as Executor of his Will, therefore P trusted DB.

DB was also closer (approximately 100 miles) and visited P regularly, unlike DW who lived some 200 miles away and did not have regular contact (the court preferring the evidence of MG).

The court accepted that MG and P were partners having had the advantage of a written speech prepared by P for P’s 80th, and his Will that he wrote in 2011. The court therefore stated that MG’s views were a significant factor and carried considerable weight.  

Even though paragraph 20(iii) of the practice guidance (in relation to publication of judgments) does not extend protection of anonymity beyond P or their family members, the court relied on Article 6 of the European Convention on Human Rights for protecting DB’s identity to afford him a fair trial by having an ‘equality of arms’ (Dombo Beheer BV v Netherlands (1993) 18 EHRR 2013, paragraph 33).

Read the full text of the judgment on Bailii