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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> David and Barry v Peter [2014] EWCOP 31 (03 September 2014) URL: http://www.bailii.org/ew/cases/EWCOP/2014/31.html Cite as: [2014] EWCOP 31 |
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42-49 High Holborn London WC1V 6NP |
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B e f o r e :
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IN THE MATTER OF DG DAVID and BARRY |
Applicants |
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- and - |
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PETER |
Respondent |
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The Respondent in person
Hearing date: 19 August 2014
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Crown Copyright ©
Senior Judge Lush:
The background
The objection
"Taking into account all the views of those consulted, the social care team has concluded that the decision is that DG remains living in [the residential care home], where his assessed care needs are appropriately met."
Andrea Watts' submissions
"The applicants have followed the local authority's advice and so believe it is in DG's best interests for him to remain at [the residential care home]. He clearly lacks capacity to deal with his property and affairs and requires a deputy. The applicants have been assisting and supporting DG with his general care and finances for many years now and they see this as a natural extension of the support they have been providing.The respondent's objections stem largely from concerns he raises that his brothers have not informed him about certain decisions and have not always shared information and documentation with him. The applicants accept with hindsight that they should have kept their brother better informed. However, it is clear that the applicants care deeply for DG (as indeed the respondent does), have devoted a huge amount of time and energy to supporting and caring for him, and have always tried to do what is in his best interests. The court can be satisfied that they will continue to act in this way. They have certainly not demonstrated the 'dismissive attitude' towards their father that the respondent makes reference to. It is all too easy to criticise people in the applicants' position at arm's length but they have had to make very difficult decisions about the care of their parents.
The reality of the situation is that the applicants are in a position to assist with day to day care and decision making, and the respondent is not. It is not a criticism of him, but the geographical distance simply makes him a less suitable choice of deputy than the applicants.
Further, the tone with which the respondent describes his brothers' behaviour in respect of decisions they have made about their parents indicates that he is unlikely to consult them or give any weight to their views in future decision making. He refers to them being "untruthful, deceitful, unreasonable, uncooperative … unethical … suspicious …"
There is not a sufficient level of cooperation between the brothers to enable all three of them to be appointed as deputies.
The respondent alleges that the applicants will use their role as deputies to take over DG's affairs in order to have 'total control'. However, the applicants as deputies will be monitored and supervised and clearly if their behaviour is not in accordance with the MCA Code of Practice and they are not making decisions in DG's best interests the Public Guardian will investigate and refer the matter back to the court."
The hearing
(a) regular emails describing their father's present circumstances and state of health;(b) copies of DG's bank statements; and
(c) a copy of the annual deputyship report submitted to the Office of the Public Guardian.
The law relating to the appointment of a deputy
(a) to consider whether it is likely that P will have capacity in relation to the matter in question at some time in the future (s 4(3));(b) so far as reasonably practicable, to permit and encourage P to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him (s 4(4));
(c) to consider, so far as is reasonably ascertainable, P's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity) (s 4(6)(a));
(d) to consider, so far as is reasonably ascertainable, the beliefs and values that would be likely to influence P's decision if he had capacity (s 4(6)(b));
(e) to consider, so far as is reasonably ascertainable, the other factors that P would be likely to consider if he were able to do so (s 4(6)(c)); and
(f) to take into account, if it is practicable and appropriate to consult them, the views of anyone engaged in caring for P or interested in his welfare, as to what would be in his best interests and, in particular, as to the matters mentioned in section 4(6): (s 4(7)).
Discussion
(a) Willingness to act. Section 19(3) of the Mental Capacity Act states that "a person may not be appointed as a deputy without his consent." All three brothers consent to act, so, in this respect, there is nothing between them.(b) Ability to act. This is not quite the same as willingness to act. There is no apparent impediment, such as bankruptcy or ill health, to any of the three brothers acting.
(c) Qualifications. All three brothers have an accountancy or book-keeping background, and all have worked in the family business at some stage. Barry still does. In this respect, there is nothing between them.
(d) The nature of their relationship with DG. All three parties are DG's sons. In various ways each of them has been assisting him with his affairs for several years. David has had general oversight of DG's day to day financial affairs and the payment of bills. Peter has completed his parents' tax returns each year, and Barry has done the banking. There is nothing to choose between them.
(e) DG's past and present wishes and feelings and, in particular, any relevant written statement made by him when he had capacity. In June 2013 a Lasting Power of Attorney for property and financial affairs was prepared, in which it was proposed that DG would appoint all three sons jointly and severally to be his attorneys. In his witness statement dated 16 July 2014, David said:
"Peter implies that he was excluded from discussions regarding a Lasting Power of Attorney for father, but in fact the application had been drafted for all three of us to be appointed. Father was initially supportive of the application but later changed his mind. I therefore decided not to pursue the application."(f) DG's will. A person's will may sometimes assist the court in exercising its discretion as to whom it should appoint as a deputy for property and affairs. DG made his last will on 9 July 2010. He appointed his wife and three sons as his executors and gave his entire estate to his wife. If she predeceased him (as, indeed, she did), then his residuary estate was to be divided equally between his three sons. Once again, there is nothing to distinguish between the contenders.
(g) Remuneration. None of the three brothers expects to be remunerated.
(h) Security. Section 19(9)(a) of the Mental Capacity Act provides that the court may require a deputy to give such security as the court thinks fit for the due discharge of his functions. All are prepared to give security, and again there is nothing to choose between them.
(i) Conflicts of interest. I cannot see that there are any major conflicts of interest, or that any one of the brothers is seeking to take advantage of his appointment as deputy.
Decision
(j) Geographical location; and(k) The ability to interact with others.
"The reality of the situation is that the applicants are in a position to assist with day to day care and decision making, and the respondent is not. It is not a criticism of him, but the geographical distance simply makes him a less suitable choice of deputy than the applicants."
"Yes, we agree that [the residential care home] is not perfect, but if anything is wrong I go and talk to the person who is going to get it fixed. At any time I have an issue, I talk to them. They know me and my wife. I have no qualms about the management. It's not The Ritz. I wouldn't expect it to be, but the people - the carers - go out of their way to look after my father. Not just the carers but the gardener, the cleaner, the handyman. It's a very nice environment."
"I've complained about cleanliness. I've complained about security.""I complained to the chief executive of Anchor Homes."
"I have made Freedom of Information Act requests."
"My parents were put in [the residential care home] against their will: deprived of their liberty by my brothers."
"I suggested that they feed my mother through a drinking vessel. The care home refused to do that on the grounds that it was undignified."
"I sent 50 to 100 emails to Social Services badgering them to get Mum and Dad home."
"Social Services have not followed through any of their promises."
"The care home won't talk to me, either. I don't understand why they won't talk to me. They won't give me any information at all."
"David and Barry don't have it in them to challenge everybody. [The residential care home] needs challenging. Somebody needs to challenge them. If I were in charge of my father's finances, I would."
"In my desire to get deputyship the main reason is to look after the accounts like David, but I would be a lot harder with [the residential care home] in view of their laissez faire attitude."