Top trumps

The considerations for appointment of a deputy for property and affairs are well demonstrated by the case of Re AW [2015] EWCOP16. In this case, there were opposing applications to be appointed as deputy by the applicant, (DB) who was a friend, and the respondent (DW), who was the nephew and closest relative of P. Each opposed the other's application for appointment.

DB opposed a proposal of joint deputyship as he believed that they could not work together. DB feared
that the respondent would be obstructive and that this would not be in P's best interests.

The background

P was 98 years old, had dementia and lacked capacity to manage his financial affairs. He was in a care home and unlikely to improve. The court found that a friend/companion, MG, was the most important person in P's life and her views as to what was in P's best interests carried considerable weight.

MG and other family members of P supported DB's application or proposed the joint deputyship.

Senior Judge Lush felt that it was important to note that no-one has an automatic right to be appointed as deputy, so although DW may have thought that the fact that he was the closest family to P trumped the friend's application, this was not the case.

The court has discretion as to whom to appoint, acting in P's best interests in all the relevant circumstances. The court decided to appoint DB as deputy for these reasons:

1. DB had the necessary literacy and numeracy skills to act as deputy, the ability to communicate with others in a courteous manner and sound business acumen, so he had the ability to understand and deal with financial matters for P.

2. DB had been helping with P's financial affairs for some time. As a result, DB's COP1A form gave far greater detail about P's financial affairs than DW was able to give, as the only asset he was aware of was P's bungalow.

3. DB had been appointed as executor of P's latest will, and section 4(6)a of the MCA requires the court to consider P's past and present wishes and feelings. The fact that P trusted DB to deal with his estate was a relevant factor. Although DW had reportedly been asked to be an executor of an earlier will, no such will was ever produced.

4. DB was much closer to P geographically and visited more often. The court commended the way DB had managed a crisis when P had become increasingly disorientated. In contrast, while DW had maintained that he had regular contact over the years, the judge preferred the evidence that he had had little contact with P and had been unaware of times when P was in hospital, commenting, 'This is not the behaviour of someone who is in regular contact or even particularly interested.'

The court did not criticise DB for refusing to accept the proposal to act jointly, noting that joint appointments rarely work where there has been a bitterly opposed application, and it could adversely affect the administration of P's affairs. The court appointed DB as sole deputy.

Outside the jurisdiction

In the recent case of DGP Law v DGHP and Others [2015] EWCOP58, the court appointed as deputy an applicant whose habitual residence was outside the court's jurisdiction of England and Wales. This goes against the commonly held view that the court should not appoint someone as deputy from outside
the jurisdiction.

The court quoted a decision made in the Canadian Ontario Court of Justice in Quinn v O'Neill [1992] 47ETR18, in which the court found that there was no longer a basis for opposing appointments of those outside the jurisdiction given the advances in technology and travel, and the requirement to post a security bond.

Senior Judge Lush agreed that because someone was living outside the jurisdiction, it should not act as an impediment to their appointment as deputy if in all other respects, they were the most suitable candidate and their appointment was in P's best interests.
The judge noted that there was no problem in securing a security bond for deputies habitually resident overseas.

The court has made it clear in these cases that the person who is best able to deal with P's affairs in all the circumstances will be appointed as deputy, even if outside the jurisdiction or not the closest relation. 

Margaret Windram is an associate at Thomas Eggar

She writes the regular in-practice article on wealth structuring for Private Client Adviser