Re M 12268561

Analysis

M was 70, lived in London and was a successful lawyer and businessman. He suffered a heart attack and then a stroke in December 2012 while abroad on business. This led to M becoming mentally incapacitated although this was not likely to be permanent. N made an application to the court to be appointed as M’s deputy. N was M’s good friend, he lived abroad and was a successful businessman. He had worked with M for many years and had assisted M for some time with the management of his business and financial affairs. N was appointed to act for M under a general power of attorney executed in August 2012. The first respondent, O was M’s wife although based on the evidence of N and of M’s personal assistant and of M’s daughter, the marriage was not a good one and M and O led separate lives. This application had to be dealt with urgently as M’s mortgage on his £5.5m flat was about to come to term and, due to a dispute between M and the bank, there was a real risk that the bank would ‘call in’ the mortgage and sell M’s flat for less than it was worth. On 21 January 2013 an order was made for the service of the application documents together with a copy of M’s will on the parties. It was noted that the will made no provision for O but did make provision for M’s daughters and his ex-wife. M’s solicitor and his personal assistant were appointed as his executors. O objected to N’s application ascertaining that a spouse should be preferred to a friend for such and appointment or in the alternative that a panel deputy would be more appropriate. She also stated that the general power of attorney only related to the dispute with the bank and as such wasn’t good support for N’s appointment as deputy. She considered that her professional background as a lawyer demonstrated that she was a more appropriate choice as deputy and that given that N lived abroad he was outside of the jurisdiction of the court. N’s skeleton argument covered many of O’s objections. The final hearing took place on 24 January 2013. Senior Judge Lush set out the relevant parts of the Mental Capacity Act 2005 that should be considered. He noted that a decision of the court is preferred to the appointment of a deputy to make a decision and that there is an order of preference for the appointment of a deputy that does hold a spouse in preference to a friend for a deputyship appointment, provided it is in the person’s best interests. However, these points had to be considered against a background of all of the circumstances.

Held

Senior Judge Lush applied the balance sheet approach to the competing applications by comparing the respective strengths and weaknesses and determined as follows:

1. (1) Both N and O were willing and able to act and neither expected to be remunerated, therefore on these points there was nothing between them.
2. (2) As to qualifications, despite O’s impressive professional background, N was considered to have the edge, N’s practical experience and understanding of M’s affairs was as important as professional or academic qualifications. As neither were appointed as executors under M’s will, this didn’t provide any assistance.
3. (3) The court prefers those living locally for such appointments but as N spent three days a week in London his time out of the country was not a decisive factor.
4. (4) N’s willingness to take out professional indemnity insurance and his conduct prior to the proceedings gave support to his position.
5. (5) The nature of M’s relationship with his proposed deputy was considered alongside M’s wishes and feelings. There was no evidence to suggest that M wished his wife to manage his affairs on his behalf, the contrary was the case. When considering the views of others, there was significant evidence from those who knew M to indicate that O would not be his choice.
6. (6) The hostility, if any, between N and O was not considered to be an issue as O had alleged. N’s communications with O had been businesslike although nothing more.
7. (7) A conflict of interest was more likely to arise for O than N as she was financially dependent on M.
8. (8) The factors of magnetic importance were M’s past and present wishes, his feelings and the unanimous views of others as to what was in his best interests.
9. (9) It was in M’s best interests for N to be appointed as his deputy.

JUDGMENT SENIOR JUDGE LUSH [1] These are competing applications from the applicant and the first respondent to be appointed as M’s deputy for property and affairs. The background [2] M is 70. He lives in London and is a successful lawyer and businessman. [3] He has been married several times and his current wife, O, …

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