Donna v Martin & Anor [2015] EWCOP 23

This case considers an application by the Patient’s (‘P’) grandson (‘Alan’) and wife (‘Donna’) to become her deputy for property and affairs, and personal welfare.

Initially the court made orders on paper dismissing Alan’s and Donna’s applications.  Alan and Donna made requests for reconsideration and hearing as they felt they had not been given sufficient reasons why their application was not successful and that the Council had failed to protect P as a vulnerable adult and had wrongly accused Alan and Donna (particularly Donna) for working against P’s best interests.

The Facts
P is a 94 year old women who lives in a residential care home and has advanced stages of vascular dementia. 

P separated from her husband in 1948; they had two children, Maureen (married to David) who died in 2012 from a brain tumour, and a son James who fell out with P and has had no contact for the last ten years.

David and Maureen had 4 children, the youngest being Alan.

David had continued to support P after Maureen’s death.

Concerns
Alan and Donna had made the application as they believed that David had removed £4,000 from P’s account, and prevented them looking after her. They had reported this to the relevant authorities. 

They felt that no one was taking any notice of their concerns and no sufficient investigations had taken place; therefore they made an application to the court.

Objections
David and the other children objected to the application stating that Croydon Council should be appointed the deputy for P’s property and affairs as they did not have a vested interest. David stated that the family had fallen out as they had concerns that Donna controlled Alan.

The Law
The court made an order under section 49 of the Mental Capacity Act (‘MCA’) for the Public Guardian to report on various issues, including whether or not there was any substance in the allegations made against David. The report concluded that, amongst other things, the Police and the Council had concluded that there was no substance to the allegations of financial abuse, and that David paid the care fees on time and openly admitted that he took £4,000 which was given to Maureen four months before she died. The report was sent to all the parties.

The court considered section 16(4) of the Act (that a decision from the court is preferred to the appointment of deputy). The court stated that it was difficult to apply section 16(4) to a property and affairs setting as there was always a need for a deputy to make decisions. However it confirmed that in relation to personal welfare it does not need to appoint a deputy as any decisions should be arrived at collaboratively with all parties involved, including health care workers etc (see G v E [2010] COPLR Con Vol 470, at paragraph 57).

Decision
The court dismissed Alan and Donna’s application for both applications for property and affairs, and personal welfare.

The court appointed the Council as deputy for P’s property and affairs.

Discussion
The Council agreed to be a deputy and undertook its own investigations through an Independent Mental Capacity Advocate (‘IMCA’).  The IMCA concluded that David visited P regularly and had great affection for P.

During the process Alan and Donna had made complaints against the Council for not investigating their complaints properly which resulted in the Ombudsman investigating the Council; it concluded that the Council had not made an administrative fault. It was clear to the court that Alan and Donna had no intention of working collaboratively with all involved in P’s care and therefore it would not be in P’s best interests for them to be deputies for P’s personal welfare.

The court again reiterated that due to the hostility between Alan and Donna, and the rest of the family, and the care staff looking after P, this would have an adverse impact on the administration of P’s finances and therefore preferred the appointment of an independent deputy.

This case emphasizes the importance of all parties working together for the Patient’s best interests and that such hostility within a family is likely to result in an independent deputy being appointed to make the financial decisions on behalf of the patient.

Read the full text of the judgment on Bailii