Analysis
GW was diagnosed with late onset Alzheimer’s dementia in 2009. He had lost contact with his sons who apparently live in Australia and only had contact with one niece, CM. GW was sectioned under the Mental Health Act 1983 three times and was hospitalised in January 2013 before ultimately being placed in a residential care home. Whilst still in hospital, a safeguarding alert was raised by nursing staff for financial exploitation on the basis of disclosures made by GW about his finances, which suggested that his niece, CM, was withdrawing monies from his bank account without his consent. In June 2013, GW purported to make a will, CM being the sole beneficiary being unaware that he had made a previous will, shortly after receiving a formal diagnosis that he had Alzheimer’s, in which he had left his estate to all his nephews and nieces in equal shares. In October 2013, the London Borough of Haringey (LBH) applied to be appointed GW’s property and affairs deputy. CM objected, and sought to be appointed as the deputy. A report was prepared by a special visitor, who confirmed (inter alia) that GW had not had testamentary capacity in June 2013, lacked capacity to make decisions as to his property and affairs, did not wish CM to act as deputy because he did not trust her, but was also opposed to the idea of the Court of Protection appointing an independent deputy. However, the report concluded that GW would be likely to be reconciled gradually to the idea of the appointment of an independent deputy should the court decide this course of action, especially if matters were explained to him clearly and was given the assurance that he could have ready cash at his disposal.
Held
Application of LBH allowed, CM’s objection dismissed. The authorised officer of LBH appointed as GW’s deputy for property and affairs on the understanding that it is in GW’s best interests, and less restrictive of his rights and freedom of action, for him to retain control over his own expenditure to a limit of £200 a week.
The law regarding the appointment of a deputy was dealt with in detail in Re BM [2014] EWCOP B20, which was published on the BAILII website on 20 May 2014, and it sufficed to say that nobody had an automatic right to be appointed as a deputy. The Court of Protection has discretion as to whom it appoints, and it must exercise that discretion judicially and in the best interests of the person who lacks capacity (P). However, one matter was not mentioned in Re BM, the need to ensure that P was not subjected to undue influence [29-31]. On 13 December 2006 the United Nations General Assembly adopted the Convention on the Rights of Persons with Disabilities (CRPD). This convention came into force on 3 May 2008 and it was ratified by the United Kingdom on 8 June 2009. Although it does not form part of domestic law, it may have an interpretative influence, particularly in cases affecting the rights of a person with a disability. Any application for the appointment of a deputy affects P’s rights.
Article 12.4 of the CRPD requires that:
‘States Parties… shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, [and] are free of conflict of interest and undue influence.’
And in its General Comment No 1 (2014), published on 11 April 2014, the Committee on the Rights of Persons with Disabilities stated, at para 18, that:
‘All people risk being subject to “undue influence” yet this may be exacerbated for those who rely on the supports of others to make decisions. Undue influence is characterized where the quality of the interaction between the support person and the person being supported includes signs of fear, aggression, threat, deception or manipulation. Safeguards for the exercise of legal capacity must include protection against undue influence – however the protection must also respect the rights, will and preferences of the person, including the right to take risks and make mistakes.’
The factor of magnetic importance was GW’s statement that he did not want CM to manage his property and financial affairs. In his interview with the special visitor, he had said: ‘She is like a witch to me. I don’t want her to look after my money. I have no relatives. I have not signed a will.’ While GW’s views were neither reliable nor consistent, the strength of feeling he displayed in his interview with the special visitor meant that the court would be reluctant to override his rights and his expressed will and preference that CM should not be appointed as his deputy unless it were absolutely necessary (which it was not). Quite apart from GW’s present wishes and feelings, or his rights, will and preferences, the court would also be wary of appointing CM as his deputy in circumstances which by no stretch of the imagination can be described as free of conflict of interest and undue influence, whereas there were no such reservations about appointing LBH [43].
It was a sensible suggestion that GW should retain some day to day control over his expenditure and took into account the fundamental principle that ‘Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.’ (Mental Capacity Act 2005 s1(6))
JUDGMENT SENIOR JUDGE LUSH: 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 …Continue reading "Re GW; London Borough of Haringey v CM Neutral citation: [2014] EWCOP B23"