Tracey Angus QC and Alexander Drapkin successful in recent deputyship cases

Members of Five Stone Buildings have recently been involved in two cases concerning contested deputyship applications.

Tracey Angus QC appeared for the Applicant, a family member who wished to retire as deputy in favour of a professional, in Re A [2016] EWCOP 3

A was 78 and came from a titled family. She had schizophrenia, and had suffered from hallucinations from the age of 17. Between 1954 and 1962 she received several courses of electroconvulsive therapy, and in 1962 she underwent a frontal leucotomy. In 1959, the Court of Protection appointed her sister, B, to be the committee of her person and committee of her estate. B subsequently became A’s receiver and, when the Mental Capacity Act 2005 came into force, she became her deputy for property and affairs.

In 2012, B wished to stand down as deputy. Her daughter, C, applied to be appointed. This application was supported by C’s siblings, but opposed by their cousin, D. In May 2013, C was appointed by Senior Judge Lush. D appealed Senior Judge Lush’s decision, claiming that A had been capable of managing her property and affairs. A was examined by a consultant psychiatrist and directed that there be a hearing to determine her capacity. Following the consultant psychiatrist’s report, the President made a declaration that A lacked mental capacity, and disposed the substantive appeal.

After eighteen months as A’s deputy, C wished to stand down, and in January 2015 she filed the instant application seeking an order that a partner at Charles Russell Speechlys, be appointed in her place. She also made an application to exercise A’s power to appoint new trustees of certain settlements and appoint herself as a trustee.

The Applicant proposed that the professional should be appointed as A’s deputy because (1) she was an experienced professional deputy (2) she had the necessary expertise to take on the role of professional trustee of various family settlements, and the existing trustees wished her to act as replacement (3) it was sensible for the deputy and the professional trustee to be the same person to minimise costs.

D opposed the appointment. He claimed that the proposed professional lived in London whilst A lived in Yorkshire, and her appointment would require her being to charge fees at City of London rates. He also contended that she was unsuitable to act because she was frequently abroad and that no appointment should be made until further information was provided about A’s assets. Finally, he submitted that the professional was an expert in ‘tax avoidance’, which was morally wrong, and that she would be called as a witness to give evidence in criminal proceedings which D claimed should be brought against one of the solicitors at another firm involved in the matter, which would in turn create a conflict of interests.

The Court held that it was in A’s best interests to appoint the professional as her deputy and trustee of the relevant settlements. Whilst it was impossible to ascertain A’s own wishes and feelings about the application, it was supported by those caring for her or interested in her welfare, and the positive views held by them outnumbered those of D. Few people, he held, were better qualified than the proposed professional to hold the roles, given her practice area. She and her firm had substantial experience of acting as professional deputies and the role of other partners and members of staff should not be underestimated. They also had considerable know-how in dealing with landed families and private wealth management, and more experience of contentious Court of Protection matters. Whilst it was likely that their fees would be large, it was improbable that they would be excessive because the Senior Courts Costs Office would carry out a detailed assessment of their general management costs on the standard basis each year.

Alexander Drapkin appeared for the successful Applicant, a family member who wished to be appointed his mother’s deputy in place of a local authority in a contested hearing in Re JW [2015] EWCOP 82.

The subject of the proceedings was a 95 year old widow (“Joan”) who had suffered from Alzheimer’s dementia since 2009 and lacked capacity to make decisions about her property and affairs. The principal asset in her estate was a cottage in East Sussex worth £350,000. One of her seven children (“Daphne”) had recently died and Joan had since inherited an additional cottage worth around £150,000 (“Daphne’s Cottage”). In December 2013, an authorised officer for property and affairs deputyships of East Sussex County Council was appointed as her deputy for property and affairs.

On 2 March 2015, Joan’s son Geoffrey originally applied to be appointed alongside the Council as a joint property and affairs deputy. Whereas in December 2013 he had not been living close to his mother and had been bound by other commitments (and had accordingly not opposed the Council’s application), his circumstances had since changed. He was coming up to retirement and was able (and wished) to be more actively involved in his mother’s financial arrangements.

He also contended that he was able to visit his mother more regularly than anybody from the Council and expressed concern that the Council did not have sufficient time to dedicate to his mother’s personal circumstances.

In particular, he was concerned about the Council’s decision to sell Daphne’s Cottage which was in a poor state of repair and continued to deteriorate. Geoffrey had offered to repair and refurbish Daphne’s Cottage at a cost of £35,000 which he estimated would enhance the value of the property by around £70,000 and would help to secure Dapne’s future financial position.

Whilst it had been in his mother’s best interests for the Council to be appointed as deputy in 2013 when no individual family member was able to fulfil that role, he was now able to take over the role, and Dapne would benefit from a more ‘hands on’ and proactive approach to her finances.

The Council filed a witness statement opposing the application. They contended that it was in Joan’s best interests for the Council to remain as her sole deputy, expressing concerns about inter alia a change in Joan’s financial arrangements, and the conflict of interest arising out of the fact that Geoffrey stood to make a financial gain from the refurbishment of Daphne’s Cottage.

Geoffrey amended his application to seek his appointment as sole deputy for Joan rather than as a joint deputy acting with the Council.

It was argued for Geoffrey that it was in Joan’s best interests for the Council to be removed as deputy and for Geoffrey to be appointed. Geoffrey relied upon his concerns (1) that relations between him and the Council had broken down and that it was not in Joan’s best interests for her deputy to have such a poor relationship with her family (2) that the Council’s disinclination to refurbish Daphne’s Cottage did not have the effect of maximising Joan’s estate and were, therefore not in her best interests; and (3) about the Council’s failure to deal with necessary repairs at Daphne’s Cottage in Uckfield, including the fact that he had not been told whether or not the Council had insured both properties.

Senior Judge Lush allowed the application and appointed Geoffrey as Joan’s deputy in place of the Council. Principally, he held that it was sensible to repair and renovate Daphne’s Cottage so that it could be sold to her best advantage. He held that conflicts of interest were ubiquitous in any mental capacity jurisdiction, and that it was impossible and unrealistic to eradicate them entirely. Further, although it was not expressly stated in the Mental Capacity Act 2005, one of the principal functions of the court was to manage conflicts of interest to ensure that any act done or any decision made on behalf of a person who lacks capacity was done or made in their best interests. The conflict could therefore be managed by various safeguards including provision that Geoffrey should only be allowed to charge a daily rate of £150 in respect of his functions as a builder, and prohibiting expenditure which was in excess of the proposed budget for the refurbishment without Court approval.