Re AFR [2015] EWCOP 73

​An application by the Public Guardian to discharge two joint and several deputies for property and affairs on the basis that they have behaved in a way that has contravened their authority or is not in the father’s best interests.

Background
A, aged 88, has vascular dementia which was first diagnosed in 2006 . His wife died in 2009 and he has two daughters. On 1st  March 2012 an authorised officer of the court made an order in which she appointed the daughters jointly and severally to be their father’s deputies for property and affairs, authorising  them to sell or let his house in Luton, requiring them to keep statement, vouchers, receipts and other financial records and requiring them to obtain and maintain security in the sum of £90,000. A has resided in a care home since December 2012 following a fall at his home which necessitated a hospital admission.

On 21st of May 2015 the  Public Guardian sought an order under section 16(8)(a) Mental Capacity Act 2005 discharging the  deputies and upon discharge directing an appropriate partner of a firm of solicitors be invited to act and be  appointed to be deputy for property and affairs. Furthermore the daughters would have to account to the new deputy for all their financial dealings with A’s property and affairs from 1st March 2012 to the present date and that the security bond remains in place pending further orders of the court.

In terms of evidence the deputy’s annual report for 2013/2014 referred to loans made to themselves and when questioned about it one daughter said she was in the process of paying the money back and that two large amounts in 2013 were the legal fees for her divorce. She had also obtained £4,400 in cash from ATMs and made large debit card payments. The other daughter it transpired had paid herself over £5,000 during the period 2013/14 of which she had repaid £2,330. Despite a request there was no documentary evidence to verify repayments asserted. Additionally they claimed travelling expenses to see their father in the care home of some £5,400. When the care home manager was contacted by the OPG, the manager said the visits were infrequent and according to records they only visited A three times in the last 12 months. The daughter maintained a sum of £5,400 was genuine deputy expense.

Whilst one daughter opposed the application the other made no response at all. The one who opposed the application said she wished to be a joint deputy with an accountant overseeing her father’s financial accounts and gave the name of an accountant. The daughter’s husband filed a statement in which he stated it had been a difficult time for everyone and that “we all make mistakes” and “please give [daughter] and chosen accountant a chance to resume being deputies”.  The statement opposed the solicitor identified by the OPG and in particular the costs associated with that appointment.

At the hearing neither deputy currently appointed attended and when contacted by telephone claimed they had been told in a letter from the court they were not supposed to attend the hearing, and A was very ill and only had a few days left.

The court at paragraphs 27 to 29 set out the relevant law from the Mental Capacity Act at section 16 (8) as well as the Code of Practice chapter 8 paragraph 8.56 in particular and 8.58 relating to their duties and in particular the fiduciary duty of a deputy.

Decision
The court had no difficulty in revoking the deputyships for both sisters including the sister who opposed the application and at paragraphs 33 to 35 made some serious findings of breaches of her fiduciary  duties.

The court discharged both daughters as deputies and appointed a solicitor in place as deputy for A’s property and affairs.

Discussion
Yet again family members treating an incapacitated relative’s money as if it was their own and completely ignoring their duties under the Act and Code.
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Interestingly despite the swingeing findings of the court no order was made for repayment of any monies.

Read the full text of the judgment here