Re AMH [2015] EWCOP 70

This case concerns an application by a neighbour (‘YB’) of the patient (‘P’) to be appointed a deputy for P’s property and affairs in place of the existing deputy, London Borough of Islington (‘LBI’).

The Facts
P was born on 1st May 1923 and is now 92 years old. In January 2013 P was diagnosed with having Alzheimer’s dementia and since 26th June 2013 she has resided in a nursing home.
 
None of P’s family were suitable or willing to become P’s deputy so the court appointed LBI as deputy on 20th August 2014.
 
LBI became aware that YB was renting the upper floors of P’s house to tenants and receiving rent of £600 and £750 per month. On 23rd April 2015 LBI issued possession proceedings against YB and hearings had taken place in May and July 2015.
 
YB is a retired lecturer. YB stated in his application that P wished to make a Lasting Power of Attorney (‘LPA’) in favour of him but did not do so before she lost capacity. YB continued to deal with P’s affairs, and that her son in the USA was aware of this and supported YB. YB stated that he lodged an objection using recorded delivery but that this was never received by the court.
 
Objections
LBI objected stating that they have issued possession proceedings against YB as he has placed tenants in unlawfully and is receiving the rental income - these proceedings were still on going.
 
LBI stated that YB is not a family member, failed to provide evidence of signed contracts, he mixes P’s money with his own putting him in conflict with P. He has failed to cooperate with LBI even after they were appointed deputy. YB has not visited P in the home except on 2 occasions to serve her with his application and get her to sign some papers. YB has breached numerous orders in relation to the property; and still has not provided full accounts of the rental income.
 
YB’s Position
He stated that he has lived next door to P for the last fifty years and the upper floors have been let throughout that time. YB stated that he had helped P with her finances before she became incapacitated. LBI were aware of YB as he had helped with an environmental issue. He denies he has acted fraudulently, and that he has attempted to pay the rental money into P’s bank but LBI closed the account.
 
The Law
The court considered sections 1 to 4 of the Mental Capacity Act 2005 (‘the Act’). It also considered section 16(2) of the Act. 
 
The court referred to section 16(8) which deals with revoking or varying the powers of the deputy if they have behaved or propose to behave in a way that contravenes their authority or it is not in P’s best interests.
 
Decision
The court dismissed the application as YB failed to prove on the balance of probabilities that LBI had behaved, or propose to behave, in a way that contravened its authority. YB also failed to establish that it was in P’s best interests to appoint him as deputy in place of LBI.
 
The court made no order as to costs at the hearing but ordered written submissions.
 
Discussion
The court emphasised the wide discretion it has when appointing deputies but the same discretion is not there for removal, mainly because the court will be able to examine the current deputy’s track record. 
 
The court referred to the COP3 completed in May 2014 when LBI applied to become P’s deputy and noted that P was happy for LBI to be appointed. No evidence was presented to the court to suggest that this was not the case.
 
YB was P’s opponent in the possession proceedings which clearly give rise to a conflict.
 
YB failed to provide receipts for works amounting to £15,000 he states that he has taken in regards to P’s property.
 
As YB has failed to comply with court orders it was hard for the court to see how he would fulfill his duties as P’s deputy.
 
It will be interesting whether or not the court departs from the general rule in relation to costs coming out of P’s estate once it receives submissions on the same.
 
Read the full text of the judgment on Bailii