Re PAW (appointment of a deputy) [2015] EWCOP 57

An application for the appointment of a deputy for property and affairs.

Background
PAW  is a 72 -year-old woman who resides in a nursing home. She has dementia (Alzheimer’s) which was diagnosed formally on 4 June 2010. Her husband, ARW, who is one of the applicants is a former pharmacist aged 78 and has also been diagnosed with Alzheimer’s. The couple has two sons. IW, one of the respondents to the application, is the managing director of a company which went into liquidation and  he is in the process of setting up another company. Another son, PW, lives in Singapore and is the general manager of a well-known hotel chain. The two other applicants namely SJ and BQ are a sister and brother who are PAW’s first cousins once removed. They asserted that they have always been close knit family.

ARW applied for an order appointing him and SJ and BQ jointly to be his wife’s deputies for property and financial affairs. Her assets comprise the family home worth £450,000, half a secured joint loan of £170,000 she and her husband made to IW to set up the company which has now gone into liquidation and investments with an asset management company worth £140,000. IW objected to the application and instead proposed that as the eldest son he wished to be one of two deputies and as his brother lives abroad he had no objection to BQ being the second deputy. He said that his mother and father should where possible be involved in decisions about their lives but that due to his father’s dementia he should not be a primary decision maker. IW sought the application be struck at and he also believed that SJ was unsuitable to be a deputy.

PW, the younger son of PAW, disagreed with IW’s objection and asserted that BQ and SJ had known his parents almost the entirety of their lives. Whilst he set out that he did live abroad and currently lives in Singapore having spent most of his career since 1999 abroad, he has had regular visits and weekly phone contact. He relied upon his brother and friends to keep him appraised of his parents condition. He said his father PAW recognised that both he, PW, and IW were very different characters and that there would be many  disagreements on decisions which would negatively impact upon the family and that is why his father had selected BQ and SJ as deputies for his wife. PW also set out the history of his brother’s business and asserted that the debts of the company included money, loans and gifts from his parents and that this money could potentially be used to pay for care needed for his mother and father. It was for this reason that PW considered that IW should not be named deputy by the court. PW said that as BQ and SJ have powers of attorney over his father’s affairs the court should also appoint them as deputies for his mother, as per his father’s initial request.

Decision
The court applied sections 1 to 4 Mental Capacity Act 2005 and in particular the checklist. The court then moved on to consider section 16 (2) which provides that the Court of Protection may make any decision on his behalf itself or it may appoint a deputy to make decisions on P’s behalf. The court recorded that the Court of Protection has a discretion as to whom it appoints and it generally preferred to appoint a relative or friend deputy rather than a stranger (a professional deputy). At paragraph 26  of the judgment the court sets out circumstances in which the court would not appoint a family member as deputy which included: 

• the proposed deputy has physically, emotionally or financially abused P;
  
• 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;
  
• there is an actual conflict of interests, rather than simply a potential conflict;
  
• the proposed deputy has an unsatisfactory track record in managing his or her own financial affairs;
  
• there is ongoing friction between various family members, which is likely to interfere with the proper administration of P’s affairs; and
  
• 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.

As a result of considering these factors the court decided not to appoint PAW’s husband, ARW, as deputy due to his own health issues. The court determined it was not appropriate to appoint IW as his mother’s deputy or one of them because he was his parents principal debtor - namely  £170,000 - and they may need to realise those funds to provide for their care in later life. There was actual conflict present. The court also noted that the rest of PAW’s family regarded IW is totally unsuited to be her deputy as he lacks competence and integrity, has a poor track record of managing his company’s affairs and section 4 (b) of the act requires the court to take into account the views of anyone interested in P’s welfare as to what would be in her best interests.

The court therefore appointed SJ and BQ to be joint deputies for the reasons set out in paragraph 30 which included that they are suitable relatives willing and able to act, they lived locally and able to visit PAW regularly to attend to her needs, that PAW appointed them to be executives of her will and in accordance with section 4 (b) of the Act this requires the court to take into account any relevant written statement made by PAW when she had capacity. The court also noted that ARW appointed SJ and BQ to be his attorneys under a lasting power of attorney for property and affairs and also proposed them as deputy to his wife. PW considers the appointment of SJ and BQ would be in his mother’s best interests and the court was impressed with his witness statement as opposed to the evidence of IW’s four witness statements which the court described as “rambling, hysterical and vindictive”.

Discussion
This is yet another example of family conflicts concerning financial affairs. It is plain that the court will take a strong view in relation to the issue of conflict between a potential deputy and P – here the conflict was clear due to the potential deputy’s failed business and the loan made by his parents to the company.
It is plain that witness statements need to be drafted carefully and in a measured way. Previous written expressions when P has capacity are highly relevant, here appointing two people as executors of a will, where the court then had to consider whether they should be and were suitable deputies. The wishes of P when P had capacity are important factors the court have to take into consideration. Once again there was no mention of mediation and where there is a family dispute surely the first port of call should be mediation as opposed to launching into a court application with all the attendant costs.

Read the full text of the judgment on Bailii