GN v Newland [2015] EWCOP 43

The original application was made by Julia Newland, a solicitor, and it concerned an application for Julia Newland to be appointed as a Deputy for CN (the Patient) in relation to her property affairs.  The only person to be named as respondents to the application was DN and P’s social worker.

The application came before an authorised court officer (‘ACO’) and the application was granted.

P’s son GN sought review of the decision under Rule 89 of the Court of Protection Rules 2007; and for himself to be appointed P’s deputy.

The Facts
P is 76 years and has four children. CN and her husband came from Jamaica during the 1960s. P took early retirement in 1994 and divorced her husband in 1995.

DN is 57 and is the eldest son who lives in Jamaica, VN is 53 and resides in a residential care home having suffered a stroke at 26 years, DS is 52 and is the only daughter and has not had contact with P for over twenty years, GN is 47 and is the youngest son.

P lives in a former council house which she purchased under the Right to Buy Scheme in 1989. P paid a deposit and used her housing discount. GN raised a mortgage to make up the balance.

CN has Alzheimer’s disease.

Julia Newland was approached by P’s social worker to meet P and become her deputy as P was struggling to pay her bills and deal with her finances.

Concerns
CN sought a review of the decision of the ACO stating the following reasons:

• He had no notice of the proceedings;
  
• The ACO was wrong in law and exceeded his jurisdiction by acting on his own cause in breach of natural justice;
  
• The decision maker was possibly biased;
  
• The ACO acted beyond the scope of his powers

Proceedings
The court ordered a report by the Court of Protection Visitor under section 49 of the Mental Capacity Act 2005 to ascertain the views of the P regarding, amongst other things, the involvement of her children.

Due to P’s poor current short-term memory some questions were difficult. P was quite clear that she did not want GN involved as he would try and sell her house and the house did not belong to him. P expressed a wish for a cousin to be deputy but he did not wish to. P did not really remember Julia Newland although did state that her face looked familiar. 

The court heard from Julia Newland, the social worker and GN. Julia Newland stated that as for notifying all the children she was aware they had been estranged for several years. Also she was informed that GN had assaulted his mother. She therefore believed that it was inappropriate to include GN in the application and that she was respecting P’s wishes.

During GN’s evidence he asserted that P was violent towards him resulting in him having to move out of the property. Further he was unable to acknowledge that P had a beneficial interest in the property by virtue of the housing discount. 

The Law
The court considered the new rule 7A regarding the court authorising the ACO to exercise the jurisdiction of the court. It also referred to PD3A paragraph 2.1(a) permitting the ACO to deal with applications concerning deputies for property and affairs applications.

The court considered Rule 70 which deals with notification to certain persons in accordance with PD9B.  There is a list of people according to their presumed closeness. The presumption can be displaced and the reasons should be put in the application form.

When making the decision regarding who should be appointed deputy the court in particular considered section 4(2),(4) and (6)(a), in relation to all the relevant circumstances, and the participation of P, and P’s wishes and feelings.

The court further considered Article 12.4 of the United Nations Convention on the Rights of Persons with Disabilities.

Decision
The court was satisfied that Julia Newland acted in accordance with the practice direction and had good reason not to give notice to P’s other three children and the presumption was displaced.

The court found GN’s complaints regarding the ACO were entirely unfounded and unwarranted.

It dismissed GN’s application to be appointed P’s deputy and Julia Newland was retained as P’s deputy. 

Discussion
The court considered it would be failing under domestic and international law if it disregarded P’s rights, will and preferences by appointing GN as her deputy when she had strong views about him having nothing to do with her finances.

The court dismissed GN’s application for three reasons:

1. He was the bane of P’s life and that P wanted nothing to do with him;
   
2. He would be unable to act competently and fairly as he had an interest in the property which was adverse to P’s; GN was unable to see that P had an interest in the property;
   
3. It was in P’s best interest for Julia Newland to continue as P’s deputy; no other person was willing or able to act.

This case highlights how important it is to have a good relationship between a family member wishing to be P’s deputy. Where there is a conflict of interest, as there was in this case regarding property rights, and a volatile relationship then it is not going to be in the P’s best interest for that family member to be appointed as a deputy.

Read the full text of the judgment on Bailii