On 27th January 2015 P’s youngest daughter, DC, applied to the court for appeal of the order so that all P’s children could be appointed for not just property and affairs but to personal welfare as well, naming her other two siblings, TT and ST as applicants as well.
The court treated DC’s application as a reconsideration of the order rather than an appeal.
The Patient (“P”) was born on 28th September 1932 and is an 82 year old man who lives in a residential care home. P has had dementia since 2012. P married twice and has five children.
P owned a business with a shop and a flat above it. The oldest son, TT, worked in the shop and drew a wage until December 2013 despite the business receiving no income, meaning that P was paying TT from his pension.
After legal advice and discussions amongst all siblings MA and PB made the application themselves to be appointed P’s deputies as it would not have been practicable for all of the siblings to be made deputies.
P’s wish was to remain at home and be cared for there.
P’s assets were approximately £700,000, consisting mainly of a home and the business premises.
In December 2014 MA and PB instructed their solicitor to write to the siblings as the business premises and flat needed to be sold to fund P’s care at home. This prompted DC’s application in January 2015.
P was admitted to hospital in February 2015 and following a Best Interests meeting it was decided that P needed to move to care home. This was found by MA and PB who make regular visits.
DC complained that MA and PB failed to inform DC, TT and ST of the outcome of the proceedings and were reluctant to pass on information regarding P’s circumstances.
ST (the middle son) was residing in the flat above the business premises and having received a letter from MA’s and PB’s solicitor in December 2014 asking for his proposals to vacate the flat, ST wrote back and refused to leave claiming that there was a ‘Irrevocable Deed of Gift’ on 24th March 1994 made by P to ST and he would not leave the premises. ST issued proceedings under the Family Law Act 1996 against MA and PB. By this time P had moved into a care home and his house was sold so there was no immediate need to release funds from the business premises to fund P’s care. The Family Court dismissed ST’s application.
MA and PB responded explaining that it was agreed between the siblings that they would be deputies and were aware of what was happening. Only when they sought to release funds from the business premises did this prompt DC’s application.
They had grave doubts regarding the authenticity of the Deed produced by ST. There were many inconsistencies, including the address of P as this was not P’s actual address until after the date of the Deed. Further there were three witnesses instead of one; two were dead including P’s late wife whose name was spelt wrong on the deed; and ST himself was a witness.
The deputies were the only ones who complied with the court directions to file and serve witness statements and attend the final hearing.
DC, TT and ST did not attend despite knowing the date of the hearing.
The court considered section 16(2) of the Mental Capacity Act 2005 (‘the Act’) for the appointment of deputies; section 19(4)(b) enabling the court to appoint two or more deputies; section 16(3) what considerations the court must have, in particular sections 1 (principles) and 4 (Best Interests).
The court considered the provisions of Rules 156 and 159 relating to costs of such applications.
The court found that the factor of magnetic importance in this case was that P had made MA and PB executors of his last Will in 1998. This showed that he trusted them and did not change his Will up until the point he had lost capacity.
The court affirmed the order appointing MA and PB as deputies for P’s property and affairs and dismissed the application by DC, TT and ST.
The court made a costs order against DC, TT and ST in equal shares and not out of P’s estate. The court authorised the deputies to provide an interest free loan to DC, TT and ST to pay the costs from P’s estate to be repaid out of their respective shares upon P’s death.
This case is another example of a rather ill thought application borne by highly charged family issues. The court was unimpressed with the applicants’ conduct, their failure to comply with the court directions and the fact that they ‘didn’t bother to turn up’ - they simply ‘lit the fuse and ran away’. It is an example that the court will readily move away from the general rule that the costs of property and affairs applications will be borne by the P’s estate where the case justifies it.
Although DC made an application for exemption from paying the application fee of £400 and the hearing fee of £500 because her husband was receiving Employment and Support Allowance this did not prevent costs orders being made against her.
The way the Will was drafted means that MA and PB would have to bring an application for a Statutory Will to redress the unfairness now that P is being cared for in a home and his house has been sold to meet the fees.
Read the full text of the judgment on Bailii