Re H [2015] EWCOP 52

WTLR Issue: December 2015 #155



This was an application to appoint successive deputies for a young woman aged 26, ‘H’. Section 19(5) Mental Capacity Act authorises the appointment of successive deputies.

H was an only child and lived with her parents F and M, both of whom were in their 50s. H was diagnosed autistic when she was five, and her cognitive function and adaptive skills were in the extremely low range. She had very limited communication skills.

In August 2014, her parents applied to be joint and several deputies for property and affairs and personal welfare. They also applied for the appointment of three successive deputies, A, B and C, in the event that they could no longer act. A, B, and C were known to H. A and B were her maternal aunts. C had got to know H at college, and was now paid to work with H one day a week.

As the applicants were seeking a personal welfare order, they were required to apply for permission in form COP2. Senior Judge Lush had initially refused permission to apply for successive appointments, though he acceded to the application for permission to apply for appointment of deputies. The applicants applied for reconsideration of the order under r89 Court of Protection Rules 2007. Senior Judge Lush acceded to the appointment of F and M on an interim basis.

Senior Judge Lush asked the Public Guardian to prepare a report under s49 MCA 2005 considering the appointment of successive deputies, and the Public Guardian for its part obtained a special visitors report, as well as approaching a policy representative at the Building Societies Association.

Held, allowing the application:

    1. 1) The appointment of a deputy was necessary.
    2. 2) A balance sheet of the advantages and disadvantages would enable the court to identify the issues and determine whether appointment of successive deputies would be in H’s best interests. In this case, the factor of magnetic importance was that the appointment of successive deputies will give H’s parents peace of mind.
    3. 3) (obiter) The circumstances of H’s parents were one of the prime considerations that prompted Parliament to enact s19(5).
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 …
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Counsel Details

John Friel (Hardwicke, New Square, Lincoln’s Inn, London WC2A 3SB, tel 020 7242 2523, e-mail, instructed by SEN Legal (Units 3-4, Forbes Business Centre, Kempson Way, Bury St Edmunds, Suffolk IP32 7AR, tel 01284 723 952, e-mail, for the applicants.

Legislation Referenced

  • Court of Protection Rules 2007 r89
  • Mental Capacity Act 2005, s1(5), s4, s13, s16(4), s19(5), s49, s58(1)
  • United Nations Convention on the Rights of Persons with Disabilities, Art 12.4