Best interests in the Court of Protection

Alan v David [2015] EWCOP 23 involved a dispute as to who should act as the patient's (P's) deputy. P's son-in-law, David, who had provided assistance to her for some years, requested that Croydon County Council be appointed deputy. This was supported by two of his children. However, one of his sons, Alan, and his wife, Donna, objected and applied to be appointed as P's personal welfare and property and affairs deputies.

The court held it would not be in P's best interests to appoint Alan and Donna on account of the hostilities that existed between them, the rest of the patient's family, and the care home staff. The court was also suspicious of Donna's motives, due to the inflammatory and hysterical nature of the submitted documents, accompanied by a high frequency of phone calls to the court. The council was appointed as the deputy for property and affairs.

The court also dismissed the application for a personal welfare deputyship on the basis that the application was neither necessary nor well founded. A health and welfare decision was a collaborative one between those with an interest in the welfare of the patient. Working together is the best policy to ensure incapacitated adults receive the highest quality of care. In this case, Alan and Donna had shown they had no intention of collaborating with family members, the care staff, or social services.

Reconsidering deputyship

GN v Julia Newland [2015] EWCOP 43 concerned a solicitor who had been appointed by the court as CN's deputy. CN had four children, one of whom, GN, requested the court reconsider the order appointing the solicitor on the basis that:

• He had not been given notice of the proceedings; and

• The court officer had exceeded his authority, made an error of law, was biased against him, and had breached the rules of natural justice.

The solicitor stated in a witness statement that
another of CN's children, DN, had been notified of the application and had not raised any objections. The solicitor, Newland, had not notified GN because CN had specifically asked her not to, and also because she was aware of independent allegations that GN had physically assaulted his mother and therefore she believed it inappropriate that he be notified.

Senior Judge Lush referred to practice direction 9B, which stated that members of CN's close family were likely to have an interest in being notified that an application had been made to court concerning CN. However, the presumption could be displaced where the applicant was aware of circumstances which reasonably indicated that CN's family should not be notified, but where others should be notified instead.

SJ Lush held the solicitor had acted in accordance with the practice direction and that she had had good reason not to give notice to another child, VN, who lacked capacity, another son, DS, with whom CN had had no contact for 20 years, and GN, whom she clearly stated she did not want anywhere near her house or her money. The presumption that these family members should be notified had been displaced. Further, GN's allegations concerning the court officer were entirely unfounded and unwarranted.

Distribution of damages

A solicitor had also been appointed to act as A's finances deputy in the case of David Ross v A [2015] EWCOP 46, where A had received a clinical negligence damages award of £5m. At the time of application, A was 18 years old and lived with her parents, a sister, aged 21, and a brother, B, aged 14.

The local authority decided B should attend a school which was some distance from the family home, and his parents felt obliged to find an independent school that was more local, to enable them to continue to care for A as they had been doing. The deputy made an application to the court for approval to pay B's school fees from A's funds.

The judge held it was in A's best interests for the court to allow the application - the payment of the fees was reasonably affordable for A and if A were not mentally incapacitated, she would acknowledge that her interests were inseparable from those of the rest of the family. Further, if the court were to discontinue the payment of the fees, A's parents would be compelled to return to the job market and employ an external care team to look after A, which would double the family's outgoings.

As regards the best interest test in the Mental Capacity Act, section 4, it was clear it was not possible to encourage A to participate in the decision-making process as A would have no past wishes and feelings on the matter, and that the beliefs and values likely to influence her decision
if she had capacity were largely speculative.
The court was aware the parents supported the application but, as the official solicitor had suggested, there could have been a conflict between A's interests and the parents' interests.

The judge was of the view that the only factor of the statutory test of real assistance was the requirement to take into account the views of the deputy. The judge was satisfied A's deputy knew the family and their circumstances better than anyone else, and stated that the court should be very slow to conclude that whatever decision the deputy had made regarding the school fees was wrong.

The judge was careful to emphasise that this case did not set a precedent for other applications to pay siblings' school fees, and that each such decision would depend upon the circumstances of each individual case. Nevertheless, the case makes for interesting reading, particularly the discussion by the judge of the mutual dependence in damages cases between the recipient of the award and their family.

Misappropriated funds

The court has also considered cases concerning enduring powers of attorneys (EPAs), including the case of The Public Guardian v IT [2015] EWCOP 10, which involved the unusual dismissal of an application by the Office of the Public Guardian (OPG) for the revocation of a registered EPA.
The donor, who was estranged from his wife,
had appointed his three sons as his attorneys.

The OPG discovered there were significant arrears of care home fees, all the rent from the previous matrimonial home was paid to the donor's wife, and the sons did not keep accurate accounts. However, very unusually in a case of
this kind, there was no evidence of dishonesty on the part of the attorneys. Even though they had not produced satisfactory accounts, SJ Lush felt it
very unlikely that any of the sons would have misappropriated the donor's funds. The principal criticism was that they had applied the donor's funds towards their mother, who would otherwise be dependent on means-tested benefits.

The Mental Capacity Act 2005, schedule 4, paragraph 3(2) allows attorneys under an EPA to make provision for other persons where the donor might reasonably be expected to provide for them. Therefore, the sons had been acting within their authority, but the judge was of the view they had made more generous provision than the donor would have done, including paying the entirety of the rent from the former matrimonial home to her rather than just half. Nonetheless, to revoke the EPA would not be proportionate and would not respect the donor's rights and wishes.

Hostile joint attorneys

Another case concerning an EPA which has
been heard by the court is that of The Public Guardian v JD [2015] EWCOP 26. The donor appointed her daughters JD (a retired doctor) and GB (a radiographer) as her attorneys, to act jointly. The sisters did not get on. After the EPA was made, JD downloaded a 'page 2' from the Internet and the appointment of the attorneys was changed from 'joint' to 'joint and several'.

GB became aware of the amendment when
an application was made to register the EPA,
but despite her protests to the OPG, registration went ahead.

When the validity of the EPA was then challenged, JD submitted a witness statement explaining the EPA was amended with her mother and her aunt present but said it did not occur to her to have the amendment signed or dated.

SJ Lush considered the Mental Capacity Act, schedule 4, paragraph 4(7) regarding penalties for a person who applies for registration or makes a statement known to be false, and indicated that a criminal sanction for JD via the Crown Prosecution Service would be possible but would not serve any purpose here or be in the donor's best interests.

He concluded the EPA was incorrectly amended after execution and that the deed presented for registration was not the same deed the donor had created and therefore was of no legal effect. Further, he decided that both sisters were unsuitable to be their mother's attorneys, and were also unsuitable to be deputies because of the 'obvious hostility' between them. The EPA would be revoked and a panel deputy would be appointed.

A salutary lesson to all when dealing with EPAs or lasting power of attorneys. SJ

Karen Bayley is a solicitor at Barlow Robbins

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