Re AJ [2015] EWCOP 62

​This case involves an application for reconsideration of previous orders made on paper discharging the current deputy and replacing him with a panel deputy.

The Facts
The P is a 21 year old lady who lives with her father, Edward (‘E’), who is a 57 year old, semi retired financial adviser.

After an acrimonious divorce in 2012, P’s mother died of breast cancer on 14th July 2013.

P does not have a definite diagnosis but suffers from; developmental delay, ptosis (drooping of the eyelid), a congenital heart condition, and dysmorphia (a mental disorder caused by obsessive preoccupation with a perceived defect in her appearance). 

On 16th February 2011 E was appointed deputy for P’s property and affairs and personal welfare.

On 17th July 2012 P’s parents were appointed jointly and severally.

On 18th July 2014 a family friend, G, was appointed jointly and severally with E although G was never actively involved as a deputy.

Concerns
Concerns were raised with the Office of Public Guardian (‘OPG’) resulting in them seeking an application for a panel deputy and for an account to be given to the new deputy of all of E’s dealings, including copies of all documents and records.

The OPG sought permission to file a redacted version of the Court of Protection’s visitors report in order to safeguard the identity of the person who raised concerns.

The concerns related to the misappropriation of P’s funds and the whereabouts of sale proceeds of a cottage that had belonged to P’s mother. The will of P’s mother made a trust to provide P an income during her lifetime, then to be split between two charities. The letter of wishes accompanying the will expressed a wish that E was not to have any access to the funds. Further the reports to the OPG were still outstanding from 2011.

P filed an acknowledgment of service stating that she wished to be joined as a party, and that she wished for the remaining order to remain in force.

E filed an acknowledgment of service objecting, stating that the statement of Ruth Evans from the OPG was inconsistent and that they had requested information outside of his control. E stated that he would provide details in 14 days. Nothing further was received.

An order was made discharging the deputies and appointing a panel deputy.

E sought a reconsideration of the order and directions were made and it was set down for a hearing. The court did not make P a party because her position could be secured.

P and E attended the hearing with a neighbour.
 
The Law
The court considered section 16(8) of the Mental Capacity Act 2005 (‘MCA’). The court also considered section 16(5) MCA.

Decision
The court set aside the order discharging the deputies and appointing a panel deputy. There were no sufficient grounds to justify overriding E and P’s wishes and feelings and Article 8 rights.

The court waived the requirement for E to produce accounts from 2011 to 2014 as he does not have the paperwork and will start with a clean sheet.

Discussion
It transpired that E did file evidence in relation to his objection, albeit out of time.

The judge accepted E’s reasons for not filing the reports as required by the OPG. E was not requested to file a report for 2011/2012. E was only asked in 2012 after concerns were raised with the OPG. When E and J split up, J took all the paperwork relating to P, and is still possibly held with the trustees of J. This was confirmed by the Court Visitor’s report in an interview with J, as she confirmed that all P’s mail was rerouted to J’s new house.

Monies in a savings account was in fact a gift to E but for P’s benefit. J had no knowledge of this.  

The sale proceeds of the cottage were in fact held by solicitors for the trustees and E had not misappropriated them. The fact that J made the letter of wishes clear did not challenge E’s integrity.

P had little money and therefore it was disproportionate to pay for a panel deputy.

Read the full text of the judgment on Bailii