Another financial affairs decision from my favourite Court of Protection Judge, Senior Judge Lush.
Re PL (objection hearing) 2015
http://www.bailii.org/ew/cases/EWCOP/2015/14.html
In this case, PL is a 78 year old man with considerable assets whose health and capacity have deteriorated in part as a result of very heavy consumption of alcohol (three litres of white wine and several glasses of homemade cherry brandy per day)
His oldest son applied to be the Deputy to manage his financial affairs. There were two younger daughters. All of the children were adults. The daughters objected to the son being the Deputy and opposed the application.
As sadly happens in these situations, families quarrel, particularly where money is involved.
The daughters suggested that all three of the children should be deputies jointly.
Mr Morrell, counsel acting for the son, made these representations
- Mr Morrell submitted that there were three options available to the court:
(a) to appoint VL as deputy;(b) to appoint VL and one or both of his sisters as joint deputies; or
(c) to appoint an independent panel deputy.
- He thought that a joint appointment would be fraught with difficulties and even the most minor decision could become a bone of contention. For example, it is now essential, and clearly in PL’s best interests, that a stair-lift is installed, but any discussion of this will inevitably lead to a disagreement. In his witness statement VL expressed the following opinion on a joint appointment:
“This would be simply unworkable. [My sisters] have already shown that they are not in the slightest bit interested or concerned with my father’s welfare. They are interested in his money. They have already shown no inclination to agree that essential payments be made for his wellbeing and, if they were made joint deputies, I fully expect that they would stand in the way of such essential payment. A good example is the shower. If I had had to obtain their consent before spending my father’s money on this installation, I very much doubt that such consent would be forthcoming. However, the shower is absolutely essential for my father’s health, wellbeing and his own peace of mind. Another good example is the car. My father would simply not be able to attend essential GP and hospital appointments without it.”
- “Realistically”, said Mr Morrell, “the only choice is between VL and a panel deputy.” He submitted that the factor of magnetic importance in this case was the fact that VL and SJ have looked after PL extremely well for the last two and a half years, and stated that there was no need to incur the costs of a panel deputy, which, according to the calculations in Re DT [2015] EWCOP 10, would exceed £6,000 during the first year alone.
[I know that I am a sad law and word geek, but he had me at “magnetic importance”]
The Court made an order that the son be appointed as the deputy.
Within the hearing, it emerged that none of the parties really understood the serious obligations on a deputy and the controls and safeguards that are in place. (Anyone who reads these pieces and is familiar with Senior Judge Lush’s body of work will see that this is not unique to this case – it is a regular occurance that deputies seem to work on the basis that ‘me casa su casa’ when it comes to the funds of the vulnerable person, which is absolutely not the case in law.)
- The striking feature of this case was that neither the applicant nor the respondents had any idea about the fiduciary duties and practical responsibilities that a deputy is expected to undertake and the roles of the Court of Protection and the Office of the Public Guardian (‘OPG’) in ensuring his compliance.
- As I was describing these obligations to everyone at the start of the hearing, I could see from the expressions on their faces that the respondents were reassured that certain safeguards would be imposed, and the applicant looked slightly taken aback at the extent to which he will become publicly accountable for his actions in managing his father’s property and affairs.
- Section 19(9) of the Mental Capacity Act 2005 (‘MCA’) provides that: “The court may require a deputy –
(a) to give to the Public Guardian such security as the court thinks fit for the due discharge of his functions, and
(b) to submit to the Public Guardian such reports at such times or at such intervals as the court may direct.”
- In virtually all cases involving lay deputies, the court requires the deputy both to give security and to submit an annual account or report to the OPG, and this case is no exception.
- When someone applies to be appointed as a deputy for property and affairs, they are required to complete a deputy’s declaration (COP4), which contains the following undertaking:
“I understand that I may be required to provide security for my actions as a deputy. If I am required to purchase insurance, such as a guarantee bond, I undertake to pay premiums promptly from the funds of the person to whom the application relates.”
- If an applicant refused to give this undertaking, it is unlikely that they would be considered suitable for appointment as a deputy in the first place. Having said that, the requirement to give security is no reflection on any applicant’s competence, probity or integrity. It is simply an appropriate, effective and proportionate safeguard.
- Article 12.4 of the United Nations Convention on the Rights of Persons with Disabilities, which the United Kingdom ratified on 7 August 2009, requires the state to “ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law.”
- Unfortunately, some deputies take advantage of their position, and family members are the worst offenders. A recent example was the case of Re GM: MJ and JM v The Public Guardian [2013] COPLR 290, and its sequel Re Meek [2014] EWCOP 1, in which Mrs Meek’s late husband’s niece and great-niece abused the limited authority conferred upon them by the court to make gifts.
The Judge made use of those provisions and directed that the son provide a security to the Court, which would ensure that there would be no shenanigans. [Shenanigans is of course a technical legal term, as set out in the case of Monkey Business Ltd v Jiggery and Pokery 1831]
In the order appointing him as deputy I shall require VL to obtain and maintain security of £550,000. The annual premium of 0.2% of that sum (£1,100) will be payable from PL’s estate to secure his assets to that value. The average duration of a deputyship in the Court of Protection is about three and a half years and an outlay of just a few thousand pounds to safeguard assets of up to £550,000 is not unreasonable.
[I believe that this is a sort of insurance arrangement, whereby the premiums are paid for out of PL’s assets, but if the Court were to insist on the surrender of the security – as they did in Meek [where the deputies had illegally liberated £204,000 from P’s finances for their own benefit] then the insurance or bond company would recompense PL, and could then pursue VL for that money. It would only arise in the event of Monkey Business, Jiggery Pokery, Tom Foolery or other such things]
As my all time favourite Deputy might say “Phew-ee, Muskee”
- Deputy Dawg mulling over his duties under the MCA
suesspiciousminds 