Re MLJ [2015] EWCOP 63

This case involves an application for an additional Deputy to be added and act jointly with the existing Deputy for the Patient’s (‘P’) property and affairs.

The Facts
The P was born on 13th July 1918 and is a 97 year old women. P has Alzheimer’s disease.

P’s husband died in 1985 and P resides in a nursing home where she has been since 2009.

P has a son, M, who is 58 years old and a daughter, G, who is 56 years old.

In 2010 an order was made appointing M as P’s deputy for her property and affairs; further, authorising the sale of P’s property and requiring M to give security of £130,000.

On 18th December 2014 G made an application to be joint deputy and an order that M provide a full account in respect of M’s handling of P’s property and finances.

G had a checkered past resulting in a conviction for shoplifting and a caution for common assault on a woman having an affair with her husband. G moved to Turkey to run a business which became bust resulting in a debt relief order. G has been banned twice from P’s care home,  the recent ban being in force.

Objections
M objected stating that it would not be in P’s interests. M and G do not really speak and have not seen each other since 1985. M stated that G was confrontational and aggressive. M, if necessary, would prefer a panel deputy.

He has provided everything to the Office of Public Guardian (‘OPG’), all fees are paid and P is provided for financially.

The care home provided a letter which was exhibited to M’s statement informing the court they felt that P would need to leave due to G’s behaviour but given her age it would be detrimental and not in P’s best interest.

The Law
The court ordered a section 49 of the Mental Capacity Act 2005 (‘ the Act’) report for the OPG to investigate several issues (paragraph 23). 

The court considered sections 1 to 4 of the Act, and section 16(2).

The court considered that a relative is usually best placed to know P’s finances but did give examples of when a family deputy would not be appointed (paragraph 41):

‘(a) the proposed deputy has physically, emotionally or financially abused P;
(b) there is a need to investigate dealings with P's assets prior to the matter being brought to the court's attention, and the proposed deputy's conduct is the subject of that investigation;
(c) there is an actual conflict of interests, rather than simply a potential conflict;
(d) the proposed deputy has an unsatisfactory track record in managing his or her own financial affairs;
(e) there is ongoing friction between various family members, which is likely to interfere with the proper administration of P's affairs; and
(f) there is a need to ensure that P is free from undue influence, particularly the influence exerted by the person who is seeking to be appointed as deputy. ’

At paragraph 42 the court addressed the costs of appointing a professional deputy: ‘Most family members act gratuitously, whereas professional deputies charge for their services. In Re DT [2015] EWCOP 10, I discussed the costs of a panel deputy from paragraph 50 onwards and concluded in paragraph 62 that:
    "It is likely, therefore, that in this case, a panel deputy's costs would be roughly £6,100 during the first year of            appointment, and approximately two thirds of that sum in the second and subsequent years.'

The court referred to the case of New South Wales in Holt v Protective Commissioner (1993) 31 NSWLR 227, in which the discretion involved in removal of a deputy is not quite the same as appointing one. It is for the party seeking change to show some reason why the order should be made (paragraph 45, and Section 16(8) of the Act).

Decision
G had failed to discharge the burden that M had behaved in a manner that contravened his authority, and dismissed the application.

The court awaited submissions on costs before making an order.

Discussion
The nursing home informed the OPG that if G was appointed a deputy then P would have to be removed.

It was evident that M and G had a complete breakdown of relationship and would not be able to work together. If M had not acted appropriately it would be likely that the OPG would make an application to the court. M had done everything by the book and in P’s best interests.

The court gave G a costs warning early in the case as the application was unlikely to succeed as it was not in P’s best interest at the outset. The court stated that it would consider departing from the normal rule that the costs be paid by P’s estate. It will be interesting to see what the outcome will be on costs.

​Read the full text of the judgment on Bailii