Analysis
H, who was stillborn, was diagnosed as autistic and had poor cognitive functioning and adaptive skills, almost unintelligible speech and limited communicative ability. An only child, now aged 26 years, she lived with her parents, F and M. On 6 August 2014 they applied to be appointed jointly and severally as H’s deputies for property and affairs and personal welfare. At the same time, they applied for the appointment of three successive deputies – A, B and C, all of whom were younger, female (two of them maternal aunts) and well known to H. On 6 January 2015 an order was made, on the papers, refusing permission to apply for the appointment of successive deputies as it was suggested that it would be in H’s best interests to defer any appointment until after the death of one of her parents. F and M then filed an application notice seeking a reconsideration of the order. Counsel drafted proposed wording for the successive appointment and the public guardian prepared a report considering the appointment, both generally and specifically in H’s case. In the meantime, F and M were appointed deputies for property and affairs and personal welfare on an interim basis pending the hearing date.
Held (allowing application)
Section 16(4)(b) of the Mental Capacity Act 2005 (MCA), which was mandatory, required a court to have regard to the principle that the powers conferred on a deputy should be as limited in scope and duration as reasonably practical in the circumstances. Section 19(5) MCA, in contrast, conferred discretionary power on a court to appoint successive deputies in such circumstances, or on the happening of such events, and for such period as may be so specified. Successive appointments were rarely encountered because most cases involved older people who could achieve succession by means of a joint and several appointment of, for example, a spouse and children. In a case such as this, involving a young woman, it was natural for her parents to want to put their affairs in order by making provision if either or both of them were no longer able to make decisions or in the event of both of them predeceasing. In considering what was in H’s best interests, the relevant circumstances that had to be considered included a number of steps prescribed by statute, none of which were particularly helpful in this case other than taking account of the parents’ wishes. Accordingly, it was necessary to adopt a balance sheet approach of the respective advantages and disadvantages to determine whether an appointment of successive deputies would be in H’s best interests. Although the persons who currently constituted H’s support network could change in the future and there were practical difficulties arising from the wording of the successive appointment, the application should be allowed because the factor of magnetic importance was that the appointment of successive deputies would give F and M peace of mind knowing that they had put their affairs in order. Moreover, the successive deputies would have a role not unlike that of godparents and, it was hoped, would feel a strong sense of responsibility and commitment towards H.
JUDGMENT SENIOR JUDGE LUSH [1] There are two provisions in the Mental Capacity Act 2005 (MCA) that seem to contradict each other. Section 16(4)(b) envisages that a deputyship appointment will be of limited duration, whereas s19(5) facilitates an appointment that could last for decades. [2] Section 16(4) states that: ‘When deciding whether it is in …Continue reading "Re H [2015] EWCOP 52"