Re ME [2015] EWCOP 61

The Patient’s (‘P’) daughter, Stephanie, applied to the court to be appointed deputy for P’s property and affairs jointly and severally with her sister Susan.

The Facts
P was born on 9th June 1933 and is an 82 year old woman who has lives in a residential care. P has mixed Alzheimer’s dementia and vascular dementia which was diagnosed in 2006.

P had 3 daughters form her first marriage, Stephanie, Susan, and Tina. P had a daughter Mandy from her second marriage and a son Paul from her third marriage.

P and her third husband moved to Spain in 2007 in a property that they owned 2/3 and 1/3 to Paul. In August 2010 the husband died and P returned to England.

P’s only capital was in the Spanish property, which was worth £130,000. P’s income is s state pension of £170 a week.

Stephanie accused Paul of controlling P’s money without authority and had not made money available to P for her needs. She suspected that Paul was renting out the property in Spain and keeping the money. Stephanie stated that Paul writes a cheque each month for P’s care.

Susan in her Deputy’s Declaration (COP4) stated that she had purchased all of P’s personal items. It stated that the £5,000 over the four years that P has had, little has been spent on P.

Objections
Paul stated that the care fees were paid by direct debit. He confirmed that the property in Spain was not rented out and had been investigated by social services. P was happy in the care home which was the subject of a best interest meeting.

Susan did a ‘U-turn’ and did not agree with what Stephanie was saying about Paul. She suggested Mandy and Paul should be deputies.  

Mandy did not take part in the proceedings.

Tina stated that the allegations against Paul were unfounded and referred to the best interest meeting that Stephanie did not attend. Tina stated that Stephanie had only visited P 4 to 6 times in four and half years. Tina believed that Stephanie had caused problems in the care home.
 
The Law
The court referred to the law set out in Re DGP [2015] EWCOP 58 at paragraphs 34 to 39.

The court considered section 16(2) of the Mental Capacity Act 2005 (‘the Act’) for the appointment of deputies; and sections 1 (principles) and 4 (Best Interests).

The court considered Article 8 of the European Convention on Human Rights when considering appointing a family member to be a deputy.

The court essentially had a discretion to whom it appointed as deputy, but exercised in the best interest of P. 

The court considered Rule 156 of the Court of Protection Rules governing costs.

Decision
The court appointed Tina as deputy.

Although Stephanie was unsuccessful the costs were properly incurred and there was no reason for departure from the general rule.

Discussion
The court would not appoint a professional deputy as the costs would be at least £5,000 for the first year and although possibly less thereafter it will still be significant. In any event at the present time there were no funds readily available to pay for the professional deputy, as the property in Spain had not been sold.

Stephanie had a poor relationship with her siblings and the staff and management at the care home.

The court made a point that a deputy would need to interact successfully with other people involved in P’s care.

Paul had not been proactive with providing P with a personal allowance, or put himself forward as a deputy. There was a further conflict, as he owned a 1/3 share of the property in Spain.

Unlike some of the recent case law, even though there was a poor sibling relationship with Stephanie and her brother and sisters, the application was properly made and therefore the costs were paid out of P’s estate as per rule 156.

It is important to ensure that before an application, or objection, is made that there are genuine concerns regarding the conduct and circumstances regarding the P’s finances and affairs. 

Read the full text of the judgment on Bailii