Re Paw [2015] EWCOP 57

Analysis

This was the application by ARW for an order appointing himself and two others, SJ and BQ, jointly to be deputies for property and financial affairs of his wife PAW who was unable to make decisions relating to her property. SJ and BQ were relatives of PAW who were close to her. ARW’s health had deteriorated since the application had been made and he was suffering from dementia.

The application was opposed by IW, one of ARW and PAW’s sons. IW objected to ARW being a deputy on the basis that he could not remember continuity of facts. IW objected to SJ on the basis she was unsuitable in relation to the family’s welfare. IW did not object to BQ’s appointment.

ARW and PAW’s other son, PW, disagreed with IW’s objection and wished BQ and SJ to be appointed on the basis that (i) they had known PAW most of their lives, their mother was PAW’s best friend and they had both attended her wedding, (ii) they were completely trusted by PAW and ARW, (iii) due to living abroad PW could offer limited assistance (iv) PW and IW did not get along and IW did not keep PW adequately informed of their parent’s medical conditions due to their strained relationship, (v) IW’s company had gone into liquidation that year owing significant debts, (vi) ARW and PAW had loaned IW money for the company which was yet to be repaid and this could potentially be used to pay for their care, (vii) IW’s objection to SJ was due to a personal disagreement between them which did not relate to PAW’s affairs and (viii) BQ and SJ already had power of attorney over ARW’s affairs.

 

Held, appointing SJ and BQ as PAW’s deputies:

1. 1) Sections 1 to 4 of the Mental Capacity Act 2005 provided that if a person lacked capacity to make a particular decision at a particular time, any act or decision made on his behalf must be done or made in his best interests.
2. 2) Section 4 included a checklist which required any substantial decision maker, including the court, to consider all the relevant circumstances when deciding what was in PAW’s best interests and in particular to take steps identified in that action.
3. 3) Section 16 provided that the Court of Protection may make decisions on PAW’s behalf or appoint deputies to do so.
4. 4) The Court of Protection had discretion as to who it appointed.
5. 5) The Court of Protection generally preferred to appoint a relative or friend rather than a stranger as long as it was satisfied it was in PAW’s best interests. The main reason for this was respect for their relationship, now reflected in Art 8 of the ECHR. Further a relative would usually be familiar with the person’s affairs, aware of their wishes and likely to be in a better position to consult with them and permit and encourage them to participate, or improve their ability to participate, as fully as possible in any act or decision affecting them.
6. 6) There were circumstances where the court would not dream of appointing a family member, for example:
7. a) the proposed deputy had physically, emotionally or financially abused the person;
8. b) there is a need to investigate dealings with the person’s assets prior to the matter being brought to the court’s attention, and the proposed deputy’s conduct was the subject of that investigation
9. c) there was an actual conflict of interests, rather than simply a potential conflict;
10. d) the proposed deputy had an unsatisfactory track record in managing his or her own financial affairs;
11. e) there was ongoing friction between various family members, which was likely to interfere with the proper administration of that person’s affairs; and
12. f) there was a need to ensure that the person was free from undue influence, particularly the influence exerted by the person who was seeking to be appointed as deputy.
13. 7) ARW would not be appointed as he had his own health issues and would probably prefer to be relived of the worry.
14. 8) IW would not be appointed as he was his parents’ principal debtor. They may need to realise the funds he owed them in order to provide for their care. The actual conflict between his interests and theirs was too great to enable him to secure their interests and position in a satisfactory manner. Further, s4(7)(b) required the court to take into account the views of anyone interested in PAW’s welfare and the rest of PAW’s family regarded him as unsuitable because he lacked competence and integrity and had a poor track record with managing his company’s financial affairs.
15. 9) SJ and BQ were suitable relatives who were able and willing to act. They lived locally and would be able to visit PAW regularly and attend to her needs. Further s4(6) required the court to take into account any relevant written statement made by PAW when she had capacity. A will was a highly relevant written statement, and PAW had appointed them the executors of her will indicating she trusted them to deal with her financial affairs after her death and thought they would be business like and able to cope with the paperwork. ARW had appointed SJ and BQ as his attorneys under a lasting power of attorney for property and financial affairs; he clearly trusted them and he had proposed them as PAW’s deputies. Further PW considered that SJ and BQ’s appointment would be in PAW’s best interests.

JUDGMENT SENIOR JUDGE LUSH: [1] This is a contested application for the appointment of a deputy for property and affairs. The family background [2] All the parties to these proceedings live in Middlesex. [3] PAW was born on 28 May 1943 and resides in a nursing home in West Drayton. [4] She has Alzheimer’s dementia, …

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