IMPORTANT NOTICE

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 strictly preserved. All persons, including representatives of the media must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No: 1257846T  

Neutral Citation Number: [2015] EWCOP 16

COURT OF PROTECTION

MENTAL CAPACITY ACT 2005

First Avenue House
42-49 High Holborn
London WC1V 6NP

Date: 17 March 2015

Before:

SENIOR JUDGE LUSH

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Re AW

Between:

	DB	Applicant	
	- and -		
	DW   	Respondent	
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Jennifer Lee (instructed by Steele Raymond) for the Applicant
The respondent in person and unrepresented

Hearing date: 6 March 2015
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JUDGMENT
Senior Judge Lush:

1.	These are competing applications by DB and DW to be appointed as AW’s deputy for property and affairs. 

2.	Although, technically, they are both applicants, in the title to the proceedings I have referred to DB as the applicant and DW as the respondent.

3.	As this is a dispute as to who should act as a deputy, I am required by the practice guidance, Transparency in the Court of Protection: Publication of Judgments, [2014] COPLR 78, to allow this judgment to be published. 

4.	Paragraph 20(iii) of the practice guidance says that “anonymity in the judgment as published should not normally extend beyond protecting the privacy of adults who are the subject of the proceedings and other members of their families, unless there are compelling reasons to do so.” 

5.	DW is a member of AW’s family, but DB is not. He is the brother-in-law of AW’s “dear friend and companion of many years” and, on a literal interpretation of the guidance, I should name DB but preserve the anonymity of DW.

6.	Article 6 of the European Convention on Human on Human Rights requires that a fair balance should be struck between the opportunities afforded to the parties involved in litigation. In Dombo Beheer BV v Netherlands (1993) 18 EHRR 2013, at paragraph 33, the European Court of Human Rights stated that “in litigation involving opposing private interests, ‘equality of arms’ implies that each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent.”

7.	In my judgment, equality of arms is a compelling reason for departing from the normal rule in paragraph 20(iii) of the practice guidance on the publication of judgments and I shall anonymise both names.

The background

8.	AW was born on 10 September 1916 and spent most of his working career with the Solicitors Law Stationery Society, which since the 1980s has traded as Oyez.

9.	He used to live in a bungalow in Bexley, Kent, which was purpose-built for him and his wife in 1954. 

10.	His wife died in 1982. They had no children.

11.	After his wife’s death AW found comfort, companionship and consolation at the local Baptist Church, and was baptised and even became a deacon.

12.	Towards the end of the 1980s he met a lady friend, MG, who was born on 4 August 1935 and also lives in Bexley, and they became inseparable companions. 

13.	On 14 March 2014 MG was admitted to hospital and was an in-patient for several months. Her hospitalisation triggered the need for someone to step in on a formal basis and support AW in the management of his property and financial affairs.

14.	On the day following MG’s admission to hospital, AW was taken to Gravesham Place Integrated Care Centre in Gravesend for respite care. He stayed there until 11 June 2014, when he was transferred to a residential care home in Greenhithe, and has lived there ever since.

15.	AW’s closest relative is his nephew, DW, who was born on 22 November 1945. He is a self employed engineer and lives in West Wales. He is the son of AW’s elder brother, who died in 1969. 

16.	DW also had an older brother, Keith, who died in 2008. When Keith fell ill, AW wrote the following letter to DW. It is dated 8 September 2007:

“I am writing to you to ask if you are willing to be executor of my will in place of Keith as he feels he will not be able to cope with it. I am worried about him as no doubt all the family is concerned. He seems to have a lot of problems health wise. I hope you and the rest of the family are well. I am not doing badly for an old un coming up to 91 still doing the shopping and cooking etc, although the garden is getting out of hand.”

17.	DW agreed to act as executor, but we do not know whether AW actually made a will appointing him as executor.

18.	However, AW did make a will on 15 June 2011, in which he:
(a)	appointed DB and his wife, SB, to be his executors and trustees;
(b)	gave several pecuniary legacies, including a legacy of £2,000 to DW; and
(c)	left his residuary estate to his “dear friend and companion of many years,” MG. In the event that MG predeceased him, he left his residuary estate to her sister, SB.

19.	Apart from one or two fairly minor differences, the will dated 15 June 2011 was a republication of a handwritten will he had made on 14 January 2010. Although the 2010 will was properly witnessed, there was no testimonium. Having worked for the Solicitors Law Stationery Society for most of his career, he was familiar with legal documents, and the absence of this particular clause troubled him somewhat. So he asked DB to type another will for him incorporating the testimonium, which he executed on 15 June 2011.

20.	DB was born on 20 February 1944 and is MG’s brother-in-law. He has been married to MG’s sister, SB, for ten years. They live in Poole, Dorset. DB worked for Gresham Life Assurance Society Ltd. for thirty years before retiring in 1992.

DB’s application

21.	On 9 October 2014 DB applied to the Court of Protection to be appointed as AW’s deputy for property and affairs. He made the application in person, without the assistance of solicitors. 

22.	The application was supported by an assessment of capacity (COP3) completed by a social worker, who said that AW has dementia and lacks capacity to make decisions regarding his property and financial affairs.

23.	In the prescribed form containing supporting information for property and affairs applications (COP1A), DB declared that AW’s has the following assets:

Freehold property in Bexley	250,000	
NatWest current account	16,220	
NatWest Reward Reserve account	10,159	
NatWest Bank First Reserve account	4,131	
Personal effects	200	
	£280,710	

24.	AW’s only liability is the arrears of his care home fees, which at the date of the hearing totalled £24, 671.14.

25.	AW’s annual income is £8,722 and consists of:

Occupational pension	1,752	
State retirement pension	6,156	
Pension Credit	814	
	£8,722	

26.	His principal outgoings are his care fees, which are £624 a week or £32,537 a year.

DW’s application

27.	Evans & Davies Solicitors of Aberaeron, Ceredigion, act for DW, who on 30 September 2014 applied to be appointed as AW’s deputy. 

28.	In his ‘personal statement to the court’ in the deputy’s declaration (COP4), DW said:

“The person to whom this application relates is my uncle. I am the closest living relative. I am the executor of his will. I wish to do the very best I can for him in his remaining years. I confirm that I have had regular contact with my uncle over the years, and he has stayed with us in West Wales on several occasions and has always been involved in family events such as weddings.”

29.	DW named MG as one of the respondents and described her as AW’s ‘ex lodger and friend’. He also notified two other people of the application, namely:
(a)	his late brother Keith’s daughter, BP, who lives in Hampshire; and
(b)	DB.

30.	The assessment of capacity accompanying DW’s application was completed by AW’s GP, Dr Parag Pandya of Swanscombe Health Centre, who said that AW has had dementia since 2008.

The objections

31.	On 1 November 2014 MG sent the court an acknowledgment of service relating to DW’s application. Although she did not wish to be joined as a party to the proceedings, nevertheless, she opposed the application, and said that:

“I have known AW for nearly 30 years. I am not his lodger but his partner. He proposed marriage on numerous occasions. So DW’s personal statement to the court regarding regular contact with his uncle must relate to greetings not visits. His uncle’s visit to West Wales took place before I knew AW. DW saw him for the first time recently in August 2014 following a phone call from my sister informing him of his uncle’s deteriorating condition. I therefore oppose DW’s application as he has had so little contact with his uncle over so many years and has little personal knowledge of his tastes and needs whereas DB has been a good friend to AW and will act in AW’s best interests as his deputy.”

32.	On 13 November 2014 BP filed an acknowledgment of service in which she said that she, too, did not wish to be joined as a party to the proceedings. However, she commented that:

“It seems sensible and more appropriate for DB and DW to be joint deputies. Although I do not know DB personally, he has been in touch with AW for many years and MG has always been very loyal to him. My relationship with DW is no longer and I don’t feel I can trust him after past history. They both have genuine interests but having joint ownership of financial matters can give complete transparency and avoid conflicts both now and at a later stage. I would feel confident they would work well together.”

Procedural history

33.	On 18 December 2014 District Judge Rogers made a directions order, in which he:
(a)	described DW as the applicant and BP as the objector; and
(b)	required the two of them to try and resolve their differences by mediation by 25 February 2015, failing which he set out a timetable for the filing of evidence.

34.	Unfortunately, the order made no reference to DB’s application, and I assume that no one drew to District Judge Rogers’ attention the fact that there were two competing applications in this matter.

35.	BP subsequently withdrew her objection to DW’s application and on 22 January 2015 she wrote to the court saying:

“Further to the court order dated 18th December 2014, I can confirm that DW and I have conferred and mutually agreed, via telephone conversation on 17th January 2014 that DW shall be appointed as sole deputy in relation to his uncle’s (AW’s) financial and property affairs.”

36.	On 10 February DB filed an application notice saying that he had been advised to do so by the Court Helpline because he had not heard from the court for several months.

37.	On 17 February the file was referred to me and I made an order listing the matter for hearing on Friday 6 March 2015 and inviting anyone who wished to file further evidence or make further submissions to lodge a witness statement with the court and serve a copy on the other party by 4pm on Friday 27 February.

38.	On 27 February DB, who hitherto had been a litigant in person, filed a notice of change of solicitor (COP30), stating that he had instructed Steele Raymond LLP, Solicitors, Bournemouth, to act on his behalf. He also filed a witness statement.

39.	DW did not file a witness statement. He was on holiday when the order was issued and, when he returned, his solicitor went on leave. 

40.	I realise that the parties were given fairly short notice of the hearing but, in view of AW’s advanced age and the fact that there had been no action in respect of DB’s application since October, I considered that it was in AW’s best interests to dispose of the matter as soon as was reasonably practicable.

The hearing

41.	The hearing took place on Friday 6 March 2015 and was attended by:
(a)	Jennifer Lee of Pump Court Chambers, counsel for the applicant;
(b)	the applicant, DB and his wife. SB; and
(c)	the respondent, DW, and his wife.

42.	DW was keen to emphasise that he had suggested to DB that they should be jointly appointed as deputies, but DB had rejected his offer. DW’s solicitors, Evans & Davies, had written to DB’s solicitors, Steele Raymond, on 26 February 2015 saying:

“We have spoken to our client on the telephone this morning who confirmed that he telephoned your client on the evening of Wednesday the 25th of February. Our client proposed to your client that a joint appointment be made by the court to appoint both your client and our client with regards to the affairs of AW. We record the fact that your client rejected the offer stating that he would not accept co-operation with regards to the affairs of AW. We find your client’s attitude surprising to say the least bearing in mind that our client is the nephew of AW and your client is no relation to AW whatsoever. Furthermore, our client considered that it was in the interests of costs being incurred in relation to the assets of his uncle that this matter be compromised without a formal hearing.”

Miss Lee’s submissions

43.	In a position statement prepared on behalf of DB, Miss Lee said:

“The applicant opposes the respondent’s application for deputyship. The applicant seeks an order that he be appointed as AW’s sole deputy for property and affairs. The applicant submits that his sole appointment would be in AW’s best interests. He does not agree to the appointment of DW as deputy, whether as sole or joint deputy. He does not believe that joint deputyship would benefit AW, as it is likely that the respondent will become increasingly obstructive, to the detriment of AW.

The applicant has filed and served a witness statement dated 27th February 2015. The court is referred to that statement and the exhibits attached thereto. The respondent has not filed a witness statement.

The applicant and his wife have been heavily involved in assisting AW since March 2014, when MG was admitted to hospital and AW became increasingly disorientated. The applicant and his wife contacted social services and arranged for AW to receive care, initially at Gravesham Place, Gravesend, Kent. When his condition further deteriorated, AW was transferred to [the residential care home] on 11th June 2014. In addition, the applicant has also been assisting AW with his finances, including dealing with correspondence with the council, the Department for Work and Pensions and the care home, opening a bank account for AW into which benefits could be paid, and ensuring that buildings insurance for AW’s property is maintained.

The court is also referred to the acknowledgments filed by SB and MG. Both have indicated that they consent to the applicant’s application for the reasons set out in their respective acknowledgments.

In respect of the respondent’s application, BP (great niece of AW) has filed an acknowledgment indicating her support for the applicant and expressing concern about the respondent being appointed, suggesting that instead there should be a joint deputyship. The court should note that MG and the applicant have filed acknowledgments in which they oppose the respondent’s application.”

The status of MG

44.	A burning issue between the parties was the status of the relationship between AW and MG. It is important because section 4(7)(b) of the Mental Capacity Act 2005 (‘MCA’) requires the court to take into account the views of “anyone engaged in caring for the person or interested in his welfare.” 

45.	If MG is simply a friend, the court will take note of her views. If, however, she has been AW’s partner for almost thirty years, then greater weight will be attached to her views as to what would be in his best interests.

46.	On 5 March 2014, the day before the hearing, DW’s mother wrote a letter in which she said:

“I am the sister-in-law of AW and have known him since school days. In the late 1980’s AW joined the Baptist Church where his great friends were the minister, his wife and their young children. Wanting someone of his own family to attend the baptismal ceremony, AW asked me to attend, which I was happy to do, being his nearest living member of family.

Some years later AW became friendly with MG. They enjoyed walking holidays together and got on very well. Unfortunately, MG became mentally ill and this caused AW such distress that he told me categorically that they would never be more than friends. They never lived together – each kept up their own establishment and in no sense was MG a partner or a common law wife. They got on well together and had some good times. MG did what she could for him, but repeats of her mental illness have stopped them from being any more than friends.

In 2008 AW showed the first signs of dementia and was no longer in complete control of his life. My son, DW, is willing and able to look after his uncle’s affairs so that AW may spend the rest of his life in peace.”

47.	At the hearing MG’s sister, SB, confirmed that MG suffers from bipolar disorder. MG lived in Lee, London SE12, until 1994, when she moved into AW’s bungalow. She lived with him for six or seven years, until she obtained an almshouse in Bexley. She lived with him again from 2009 until she was admitted to hospital on 14 March 2014. After being discharged from hospital in August 2014, she returned to live at the almshouse. 

48.	In a speech he gave at his eightieth birthday party on 10 September 1996, AW said:

“I have always enjoyed walking and started going on rambles. I met MG and found that she too liked walking and we went on many rambles together. I acquired a book on the Pilgrims’ Way. The walk goes from Winchester to Canterbury and MG and I decided to walk it in stages three days at a time, stopping overnight for bed and breakfast. We commenced it on Easter Monday 1994 and finished the walk in the following spring. Since then we have walked the Weald Way from Gravesend to Eastbourne and have now started on the Greensand Way, which goes through Kent and Surrey. MG and I have much in common and our love and respect for each other has deepened over the years. Do not be surprised if you hear a tinkling of bells.”

49.	In his will dated 15 June 2011 AW described MG as “my dear friend and companion of many years who has shown me so much kindness.”

50.	In the speech and the will we are fortunate in two written statements made by AW some fifteen years apart, which are entirely consistent with one another. MG is clearly a very significant person in AW’s life. Indeed, I would go so far as to say that she is the most important person in his life, and her views as to what is in his best interests carry considerable weight.

Decision

51.	In May last year I dealt with a similar case in which there were two competing applications for the appointment of deputy: one from a close friend and the other from a family member. The judgment was published on the BAILII (British and Irish Legal Information Institute) website as Re BM [2014] EWCOP B20. In that case I set out the law relating to the appointment of a deputy in some detail, and there is nothing I wish to add.

52.	I should, however, briefly summarise the law by saying that nobody (whether a family member or a trusted friend) has an automatic right to be appointed as a deputy. The court has complete discretion as to whom it appoints, but it must exercise its discretion judicially and in AW’s best interests, having regard to:
(a)	all the relevant circumstances, and
(b)	the provisions of the Mental Capacity Act 2005 and, in particular, sections 1 (the principles) and 4 (best interests).

53.	I have decided to appoint DB as AW’s deputy for the following reasons:

(1)	DB is well qualified to act as a deputy. Before he retired he was a regional manager with Gresham Life. He has appropriate literacy and numeracy skills. He has the ability to communicate with others in a courteous manner, and he has business acumen, by which I mean the ability to understand and deal with a property or financial matter in a way that is likely to lead to a good outcome for AW.

(2)	On 27 November 2014 DB was appointed as AW’s appointee by the Department for Works and Pensions, with authority to claim, receive and apply his social security benefits. He is already de facto managing AW’s financial affairs and was able to complete form COP1A (supporting information for property and affairs applications) comprehensively and in far greater detail than the form completed by DW. By contrast, DW had no idea of AW’s social security benefits or his occupational pension, or his bank accounts. The only asset he was aware of was AW’s bungalow in Bexley. 

(3)	Section 4(6)(a) of the MCA requires the court to “consider, so far as is reasonably ascertainable, AW’s past and present wishes and feelings, and, in particular, any relevant written statement made by him when he had capacity.” In Re Joan Treadwell, deceased [2013] COPLR 587, I said that, “I can think of no written statement that is more relevant or more important than a will.”

AW appointed DB to be the executor of his will; initially as the sole executor in his handwritten will dated 14 January 2010, and subsequently as a joint executor with SB in the typed will dated 15 June 2011. This implies that AW felt that DB had the necessary attributes to carry out his wishes, such as honesty, attention to detail, and the time and inclination to deal with the paperwork.

We know that on 8 September 2007 AW wrote to DW asking whether he would act as his executor. What we don’t know is whether he ever made a will appointing DW as executor. However, even if he did, he subsequently changed his mind and appointed DB instead in his later wills.

(4)	DB is closer to AW geographically and visits the Bexley area more frequently than DW. Last year, either he or his wife saw MG about thirty times, and he saw AW on at least fourteen occasions. They catch the train from Bournemouth to Waterloo and from Waterloo East to Greenhithe. The journey is slightly over a hundred miles and takes three hours. By contrast, DW lives roughly 200 miles away in West Wales and occasionally visits his mother in Basingstoke. 

In general terms, I prefer MG’s statement that “DW has had so little contact with his uncle over many years” to DW’s assertion that “I have had regular contact with my uncle over the years.” MG was admitted to hospital on 14 March 2014 and AW was admitted to a care home the following day. DW was unaware of these events for five months until SB rang him to inform him of AW’s condition. This is not the behaviour of someone who is in regular contact or even particularly interested.

(5)	As regards DB’s conduct before the proceedings, I must pay tribute to the way in which he and his wife managed the crisis in mid March 2014, when MG was admitted to hospital and AW could potentially have been left without adequate care provision. As regards his conduct during the proceedings, I cannot criticise him for refusing to accept DW’s offer that the two of them be appointed as joint deputies. Joint appointments rarely work satisfactorily in a situation such as this, where there have been fairly bitter competing applications, and any ongoing acrimony between the two men could adversely affect the administration of AW’s affairs.

(6)	As I stated earlier, MG’s views, which are set out in paragraph 31 above, are a significant factor and, as I said in paragraph 50, they carry considerable weight. She believes that it would be in AW’s best interests if the court were to appoint DB as his deputy for property and affairs. I agree.