This case concerns an application by family members of the patient (‘P’) to be appointed deputy for P’s property and affairs in place the existing professional deputy
P was born on 21st March 1932 and is now 83 years. P had 5 children, 4 from his first marriage (‘S, C, M and A: also ‘the respondents’’), and one from his third marriage (‘Z’) (P’s wife from his second marriage having died of cancer a year after separation).
In 2007 P suffered a stroke and was formally diagnosed as having vascular dementia in 2014.
P owns a flat worth approximately £450,000 and has approximately £75,000 in a bank account.
P receives an income from a tobacco company in the USA which he set up, but is now being run by C; the income payments vary.
Z applied to the court on 19th May 2015 for the court to appoint a professional deputy as Z feared that other family members were taking advantage of him.
A final hearing went ahead on 21st September 2015 but despite the respondents having complied with all the directions leading to the trial they failed to attend. The court made the order appointing a solicitor proposed by Z to be P’s interim deputy for his property and affairs for a one-year period.
The respondent’s position
It transpired that they had no notification of the same, and therefore the respondents applied to set aside the order and invited the court to appoint Sarah, S’s wife to become P’s deputy as they know P’s finances better than anyone else, and that the estate did not warrant the costs of a professional deputy. Further, they alleged that Z struggled with drug addiction and was exerting control over P. These were the objections to Z’s original application.
At the hearing the respondents further argued that there was a clear family division and tension, and serious allegations had been made against the other. The deputy does not know P, and has no knowledge of his finances.
The respondents were concerned that Z would assert influence over the deputy, as Z had previously instructed the deputy beforehand.
In the event that the court would not appoint Sarah, the respondents proposed an alternative panel deputy.
The Deputy’s position
The deputy argued that P’s affairs were complex and that the family members had not been acting in P’s best interests. Family members and P’s accountant had not co-operated with the deputy in understanding P’s finances and dealings with certain companies. It was unclear to the deputy what had happened to assets that had been transferred.
In an interim report to the court the deputy identified substantial amounts of P’s money that was unaccounted for. No comprehensive accounts had been provided or explained by P’s accountant. The deputy is even more concerned about how P’s money has been managed.
The court considered sections 1 and 4, 16(2) of the Mental Capacity Act 2005 (‘the Act’).
It considered Re M; N v O and P  COPLR 91 whereby the court drew up a balance sheet of the parties’ strengths and weaknesses (paragraph 35). The court felt that the balance sheet approach would not assist in this case.
The respondents referred to Porter v Magill  2 AC 357 for the test for determining apparent bias, and EG v RS  EWCOP 3073 stating that the appearance of a biased deputy should be avoided at all costs.
The court appointed a panel deputy in place of the existing interim deputy.
The court found that Sarah and the accountant were unsuitable as the duty of a deputy is to investigate prior dealings of P’s affairs, and therefore they would be investigating themselves.
The court found that the respondents were more likely to co-operate with a panel deputy, the respondents’ counsel having given verbal undertakings that the respondents would co-operate with whoever was appointed by the court, even the current interim deputy.
The court agreed with the respondents’ argument against the possibility of biased. At paragraph 42 the court stated:
‘…in EG v RS, JS and BEN PCT  EWCOP 3073;  COPLR Con Vol 350. Judge Cardinal introduced his judgment by suggesting that it was "a cautionary tale for all those who put themselves forward as professional deputies when too closely associated with one party in a dispute before the Court of Protection," and at paragraph  he went on to state that:
"It is just not possible to act as an honest broker on one hand and firmly on the side of one party alone on the other. It should have been clear even then to EG that she simply could not realistically pursue the application. Later on in his submissions to me Mr O'Brien posed the question what would an ordinary member of the public think? The obvious answer is that the appointee has a prejudice, a bias in favour of his/her client."
The court considered that a panel deputy with experience of investigating white collar crime and bringing proceedings for recovery of misappropriated funds would be more suitable to the complex affairs of P than the experience of the interim deputy’s practice.
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