Re A [2016] EWCOP 3

WTLR Issue: May 2016 #159

In the matter of: A

C

V

D

Analysis

C wished to stand down as deputy for her aunt A, and a professional deputy be appointed in her place. The application was opposed by D, who was A’s nephew and C’s cousin.

A was 78 and was a member of a titled family. She suffered from schizophrenia and had undergone a frontal leucotomy in 1962. In 1959, A’s sister B had been appointed to be the committee of her person and of her estate. B subsequently became A’s receiver, and later her deputy for property and affairs. In 2012, B wished to stand down and for her daughter C to be appointed in her place. This application was opposed by D. Senior Judge Lush made an order appointing C as deputy for property and affairs and made a costs order against D. D appealed against both the substantive order and the costs order and was given permission to appeal. A hearing subsequently took place to determine whether A had capacity to manage her property and affairs, and the court concluded that A lacked capacity to manage her property and affairs. This disposed of the substantive appeal. The costs appeal remained outstanding.

C now wished to stand down and for a professional deputy to be appointed in her place. She also applied for an order that the professional deputy, once appointed, exercise a power vested in A to appoint trustees of certain settlements, such that the professional deputy would also be trustee of the settlements.

D opposed the application on the grounds that the professional deputy worked in London whereas A lived in Yorkshire. He also noted that the professional deputy would charge City of London rates, and that she was a specialist in tax avoidance which he considered to be morally wrong.

D, who appeared in person, generated an enormous volume of correspondence and made points which were irrelevant and repetitious. The professional deputy sought guidance from the court as to how to deal with correspondence from D.

Held:

  1. 1) The Court of Protection has a discretion as to whom it appoints as a deputy and would often prefer to appoint a relative or friend as deputy rather than a complete stranger. A relative will usually be familiar with P’s affairs, and aware of their wishes and feelings. Someone with a close personal knowledge of P is also likely to be in a better position to meet the obligation of a deputy to consult with P, and to permit and encourage them to participate, or to improve their ability to participate, as fully as possible in any act or decision affecting them. Professional deputies charge for their services whereas most family members act gratuitously. However, owing to D’s conduct, no suitable family member was willing to act as A’s deputy and there was no alternative to the appointment of a professional deputy.
  2. 2) The appointment of the professional deputy would be in P’s best interests. She and her firm has substantial experience acting as professional deputies. The fee charged would be subject to detailed assessment by the Senior Courts Costs Office each year.
  3. 3) The professional deputy was directed only to reply to communications from D that appeared to be relevant to her role as deputy and not to reply to any irrelevant communications or to any relevant point that he had raised more than once.

Important notice This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. …
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Counsel Details

Counsel

Tracey Angus QC (5 Stone Buildings, Lincoln’s Inn, London WC2A 3XT, tel 020 7242 6201, email clerks@5sblaw.com) instructed by Hughes Fowler Carruthers (Academy Court, 94 Chancery Lane, London WC2A 1DT, tel 020 7421 8383, email mail@hfclaw.com) for the applicant.

The respondent appeared in person and was not represented.

 

Cases Referenced

  • Re Rodman; Long v Rodman and others [2012] EWHC 347 (Ch)

Legislation Referenced

  • Lunacy Act: 1890
  • Mental Capacity Act 2005, s1-4
  • Mental Health Act: 1959