What is the background to the case?
The proceedings relate to A, a 78-year-old lady with a long history of schizophrenia. From the late 1950s her financial affairs had been under the management of the Court. Her parents had both died in the 1980s, as had her sister. Her brother had died during the Second World War. She had one other sister, B, who was appointed her Receiver some years ago. When the Mental Capacity Act 2005 came into force, B was then appointed as A’s Deputy for Property and Affairs.
In 2012, B, who was at this time in her mid-eighties, wished to stand down as Deputy and accordingly her daughter, C, applied to be appointed in her mother’s place. C’s application was supported by the other family members but was opposed by her cousin, D.
On 28 May 2013, after hearing the matter, Senior Judge Lush appointed C as A’s Deputy. Judge Lush also departed from the general rule relating to costs in the Court of Protection and ordered that D pay all of the costs of the proceedings other than £7,500 (plus VAT) which is what he estimated the costs of an unopposed application would have been.
However, after only eighteen months the matter came back before the Court as C applied to step down as Deputy. C’s application sought an order that Suzanne Marriott, a partner at Charles Russell Speechlys solicitors, be appointed as Deputy and also as trustee in respect of certain family settlements.
Why was a change in deputyship proposed?
C submitted that Mrs Marriott should be appointed as she was an experienced Deputy who, at the time the application was made, was listed as one of only 70 professional deputies nationally who had been pre-selected by the Office of the Public Guardian to be on a panel that the OPG could select Deputies from where there was no one else suitable to act. C further submitted that as Mrs Marriott had experience of acting as a professional trustee, she could also take on this role and thereby keep professional fees to an absolute minimum.
Neither C nor any other family member was willing to act due to the conduct of D. It is for this reason that C’s application specifically requested the Court to direct that, should she be appointed, Mrs Marriott need only reply to communications from D that appeared to be pertinent to her role as a Deputy. In addition, in the event that D raised any point more than once, Mrs Marriott was not obliged to reply.
What were the grounds for D's opposition?
Firstly, D attempted to have the hearing adjourned on fairly spurious grounds which the Judge (again Senior Judge Lush) refused to entertain. D then sought to oppose the application, acting in person, by asserting that Mrs Marriott was unsuitable as she works in London whereas A lives in Yorkshire. It appears that D had suggested a solicitor based in York to act instead but that solicitor had already informed the solicitors for A that he did not wish to act.
D further submitted that Mrs Marriott’s appointment was dependant on her charging London rates for her fees. Again C’s lawyers argued that there would be an overall saving due to Mrs Marriott’s experience in acting in these types of matters.
D then raised several other vexatious arguments against Mrs Marriott’s appointment including that she was frequently abroad (a fact that Mrs Marriott denied) and that she was an expert in “tax avoidance” (Mrs Marriott responded by stating that her experience of tax avoidance as opposed to tax evasion was no greater than any other private client solicitor).
What is the current legal framework?
The law in this area is governed by the Mental Capacity Act 2005 (“MCA”). Sections 1 to 4 of the MCA state that if a person lacks capacity to make a particular decision at a particular time, then any act done or any decision made by someone else on his behalf must be done or made in P’s best interests.
Section 4 of the MCA sets out a checklist of factors which the substitute decision maker (including the Court) must consider. It states that the person must consider all the relevant circumstances and, in particular, take the following steps:
(3) He must consider—
(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and
(b) if it appears likely that he will, when that is likely to be.
(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
(6) He must consider, so far as is reasonably ascertainable—
(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.
(7) He must take into account, if it is practicable and appropriate to consult them, the views of—
(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
(b) anyone engaged in caring for the person or interested in his welfare,
(c) any donee of a lasting power of attorney granted by the person, and
(d) any deputy appointed for the person by the court,
as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).
Section 16(2) of the MCA provides that the Court of Protection may appoint a Deputy to make decisions on the person’s behalf.
What was the decision?
The Judge held that it would be in A’s best interests for Mrs Marriott to be appointed as her Deputy. He noted that A’s family members had previously acted as her Receiver and Deputy but that due to D’s conduct none of the surviving family members were prepared to act as Deputy. This therefore left no alternative but to appoint a professional.
Are situations like this common?
These types of application are very common in the Court of Protection, with a large number of cases being settled before ever reaching Court. Contested applications for Deputyship are becoming increasingly common.
It is therefore becoming much more imperative to instruct a solicitor who has an understanding of contentious matters as well as non-contentious. The Judge in this case specifically referred to Mrs Marriott’s specialism as including the Society of Trust and Estate Practitioners and also the Association of Contentious Trust and Probate Specialists. An understanding of dealing with a hostile party in this type of application cannot be undervalued.
What can practitioners take from this judgment?
The Courts will always try to appoint a relative or friend to act as Deputy rather than a stranger for a number of good reasons:
- there is a pre-existing relationship between P and the proposed Deputy and the Court will always be respectful of their relationship.
- a relative or friend will generally be more familiar with P’s property and finances and they will find it easier to encourage P to be as involved as possible in any decision making process.
- costs will be significantly higher if a paid professional is appointed rather than a family member.
However, in cases such as this where there is no suitable relative or friend willing to act, the Court will appoint a professional Deputy. In that scenario, it is imperative to ensure that the person selected has the necessary experience and skills to be an efficient and effective Deputy. Practitioners should consider using an OPG panel Deputy where appropriate.
Furthermore, whilst the costs will be greater where a professional Deputy is appointed, they are unlikely to be excessive due to the rigorous assessment of Deputy management costs carried out by the Senior Courts Costs office each year.
Finally, where a professional Deputy is being proposed and there is a suggestion that one of the parties will act in a way to cause costs to be incurred unnecessarily, always consider including a specific direction that the Deputy need only reply to correspondence relevant to their role as Deputy. In this way unnecessary cost escalation can be limited.
Lynsey Harrison is Head of Clarion’s Disputed Wills and Trusts team based in Leeds. She is a nationally recognised solicitor who deals with all contentious aspects of private client work, including probate, wills and trusts, as well as contested Court of Protection matters. She was recently awarded ACTAPS (Association of Contentious Trust and Probate Specialists) Contentious Solicitor of the Year 2015.
Source: Lexis Nexis, 21 January 2016
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