Andrew James Riddle v Parker Rhodes Hickmott Solicitors
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 03 May 2022 |
| Neutral Citation | [2022] EWCOP 18 |
| Docket Number | Case No: 13249213 |
| Court | Court of Protection |
[2022] EWCOP 18
THE HONOURABLE Mr Justice Hayden
VICE PRESIDENT OF THE COURT OF PROTECTION
Case No: 13249213
COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew James Riddle (as a Litigant in Person) for the Applicant
Hearing dates: 11 th April 2022
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Hayden
This is an application made by Mr Andrew Riddle, who acts as a Deputy in the Court of Protection. On the 26 th September 2018, Mr Riddle was appointed as Deputy to make decisions on behalf of Margaret Celia May, a widowed lady in her 90s, in respect of whom the Court had been satisfied she lacked capacity to make various decisions concerning her property and affairs. The Court had been further satisfied, as it is required to be, that the purpose for which the order was made could not be as effectively achieved in a way that was less restrictive of her rights and freedom of action.
As the order granted by Her Honour Judge Hilder, Senior Judge of the Court of Protection, records, the Deputy must apply the principles set out in Section 1 of the Mental Capacity Act 2005 (“the Act”) and have regard to the guidance in the Code of Practice. The power of appointment is regulated by Section 16 of the Act:
“ 16 Powers to make decisions and appoint deputies: general
(1) This section applies if a person (“P”) lacks capacity in relation to a matter or matters concerning—
(a) P's personal welfare, or
(b) P's property and affairs.
(2) The court may—
(a) by making an order, make the decision or decisions on P's behalf in relation to the matter or matters, or
(b) appoint a person (a “deputy”) to make decisions on P's behalf in relation to the matter or matters.
(3) The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1 (the principles) and 4 (best interests).
(4) When deciding whether it is in P's best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that—
(a) a decision by the court is to be preferred to the appointment of a deputy to make a decision, and
(b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.
(5) The court may make such further orders or give such directions, and confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).
(6) Without prejudice to section 4, the court may make the order, give the directions or make the appointment on such terms as it considers are in P's best interests, even though no application is before the court for an order, directions or an appointment on those terms.
(7) An order of the court may be varied or discharged by a subsequent order.
(8) The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on him if it is satisfied that the deputy—
(a) has behaved, or is behaving, in a way that contravenes the authority conferred on him by the court or is not in P's best interests, or
(b) proposes to behave in a way that would contravene that authority or would not be in P's best interests.”
Section 18 of the Act circumscribes the powers of the Deputy:
18. Section 16 powers: property and affairs
“(1) The powers under section 16 as respects P's property and affairs extend in particular to—”
(a) the control and management of P's property;
(b) the sale, exchange, charging, gift or other disposition of P's property;
(c) the acquisition of property in P's name or on P's behalf;
(d) the carrying on, on P's behalf, of any profession, trade or business;
(e) the taking of a decision which will have the effect of dissolving a partnership of which P is a member;
(f) the carrying out of any contract entered into by P;
(g) the discharge of P's debts and of any of P's obligations, whether legally enforceable or not;
(h) the settlement of any of P's property, whether for P's benefit or for the benefit of others; (i) the execution for P of a will;
(j) the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee or otherwise;
(k) the conduct of legal proceedings in P's name or on P's behalf.
(2) No will may be made under subsection (1)(i) at a time when P has not reached 18.
(3) The powers under section 16 as respects any other matter relating to P's property and affairs may be exercised even though P has not reached 16, if the court considers it likely that P will still lack capacity to make decisions in respect of that matter when he reaches 18.
(4) Schedule 2 supplements the provisions of this section.
(5) Section 16(7) (variation and discharge of court orders) is subject to paragraph 6 of Schedule 2.
(6) Subsection (1) is subject to section 20 (restrictions on deputies).
The criteria for appointment of the Deputy are set out in Section 19 of the Act:
19. Appointment of deputies
“(1) A deputy appointed by the court must be—”
(a) an individual who has reached 18, or
(b) as respects powers in relation to property and affairs, an individual who has reached 18 or a trust corporation.
(2) The court may appoint an individual by appointing the holder for the time being of a specified office or position.
(3) A person may not be appointed as a deputy without his consent.
(4) The court may appoint two or more deputies to act—
(a) jointly,
(b) jointly and severally, or
(c) jointly in respect of some matters and jointly and severally in respect of others.
(5) When appointing a deputy or deputies, the court may at the same time appoint one or more other persons to succeed the existing deputy or those deputies—
(a) in such circumstances, or on the happening of such events, as may be specified by the court;
(b) for such period as may be so specified.
(6) A deputy is to be treated as P's agent in relation to anything done or decided by him within the scope of his appointment and in accordance with this Part.
(7) The deputy is entitled—
(a) to be reimbursed out of P's property for his reasonable expenses in discharging his functions, and
(b) if the court so directs when appointing him, to remuneration out of P's property for discharging them. (my emphasis)
(8) The court may confer on a deputy powers to—
(a) take possession or control of all or any specified part of P's property;
(b) exercise all or any specified powers in respect of it, including such powers of investment as the court may determine.
(9) The court may require a deputy—
(a) to give to the Public Guardian such security as the court thinks fit for the due discharge of his functions, and
(b) to submit to the Public Guardian such reports at such times or at such intervals as the court may direct.
The scope and ambit of the Deputy's authority is identified in Section 20 of the Act:
“20. Restrictions on deputies
(1) A deputy does not have power to make a decision on behalf of P in relation to a matter if he knows or has reasonable grounds for believing that P has capacity in relation to the matter.
(2) Nothing in section 16( 5) or 17 permits a deputy to be given power—
(a) to prohibit a named person from having contact with P;
(b) to direct a person responsible for P's health care to allow a different person to take over that responsibility.
(3) A deputy may not be given powers with respect to—
(a) the settlement of any of P's property, whether for P's benefit or for the benefit of others,
(b) the execution for P of a will, or
(c) the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee or otherwise.
(4) A deputy may not be given power to make a decision on behalf of P which is inconsistent with a decision made, within the scope of his authority and in accordance with this Act, by the donee of a lasting power of attorney granted by P (or, if there is more than one donee, by any of them).
(5) A deputy may not refuse consent to the carrying out or continuation of life-sustaining treatment in relation to P.
(6) The authority conferred on a deputy is subject to the provisions of this Act and, in particular, sections 1 (the principles) and 4 (best interests).
(7) A deputy may not do an act that is intended to restrain P unless four conditions are satisfied.
(8) The first condition is that, in doing the act, the deputy is acting within the scope of an authority expressly conferred on him by the court.
(9) The second is that P lacks, or the deputy reasonably believes that P lacks, capacity in relation to the matter in question.
(10) The third is that the deputy reasonably believes that it is necessary to do the act in order to prevent harm to P.
(11) The fourth is that the act is a proportionate response to—
(a) the likelihood of P's suffering harm, [and]
(b) the seriousness of that harm.
(12) For the purposes of this section, a deputy restrains P if he—
(a) uses, or threatens to use, force to secure the doing of an act which P resists, or
(b) restricts P's liberty of movement, whether or not P resists, or if he authorises another person to do any of those things.”
In Re MN v O and P, the Court emphasised that the appointment of the Deputy for someone who lacks capacity to manage their affairs is a discretionary exercise for the Court, securely rooted in precedents long pre-dating the modern Court of Protection, created by the...
To continue reading
Request your trial