G (TJ)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morgan |
| Judgment Date | 19 November 2010 |
| Neutral Citation | [2010] EWCOP 3005 |
| Court | Court of Protection |
| Docket Number | Case No: 11256218 of 2006 |
| Date | 19 November 2010 |
[2010] EWCOP 3005
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Morgan
Case No: 11256218 of 2006
Miss Barbara Rich (instructed by Mullis & Peake LLP) for the Deputy
Mr David Rees (instructed by the Official Solicitor) for the Official Solicitor as litigation friend for G
Mr Michael King (instructed by Harcus Sinclair) for C
Hearing date: 10 November 2010
Introduction
On 31 July 2007, I made various orders in relation to two persons who were patients under the Mental Health Act 1983. The two persons concerned were husband and wife, Mr E. T. G (hereafter "Mr G") and Mrs T. J. G (hereafter "Mrs G"). At that time, I gave a detailed judgment explaining the circumstances of the two cases, the legal provisions which applied and my reasons for making the orders. The neutral citation of that judgment is [2007] EWHC 1861 (Ch) and it is reported as In re G (ET) (A Patient) [2008] WTLR 599.
Since 31 July 2007, there have been a number of relevant events. On 1 st October 2007, the Mental Capacity Act 2005 (hereafter "the 2005 Act") came into force. The 2005 Act repealed Part VII of the Mental Health Act 1983. On 7 January 2010 Mr G died. Mrs G continues to lack capacity and her position is now governed by the provisions of the 2005 Act. The person who was formerly her the receiver under the Mental Health Act 1983 is now her property and affairs Deputy under the 2005 Act both by virtue of the provisions of the 2005 Act and a confirmatory order of 5 November 2008.
The orders I made on 31 July 2007 concerned both Mr G and Mrs G. Some of those orders have been fully complied with. Other orders have been given effect but questions have now arisen as to the continuing effect of those orders in the period following the death of Mr G and hereafter. Other orders have not been carried to fruition because of difficulties that have been encountered along the way.
On 11 February 2009, that is even before Mr G died, Senior Judge Lush directed that there should be a hearing to consider the progress made in relation to the orders of 31 July 2007. On 16 March 2009, he directed that such a hearing should be listed before me. On 19 April 2010 and 30 June 2010, I gave directions as to the steps which should be taken before any such hearing took place and as to the scope of that hearing.
The review hearing duly took place on 10 November 2010. The Deputy was represented by Miss Barbara Rich. The Official Solicitor, who had been appointed as a litigation friend for Mrs G, was represented by Mr David Rees. Mr and Mrs G's daughter, whom I referred to in my earlier judgment as C, was represented by Mr Michael King. Mr and Mrs G's son, whom I referred to in my earlier judgment as N, did not formally appear at the hearing and was not represented.
Prior to the hearing, there had been considerable disagreement and uncertainty on a large number of matters. Many of those matters, such as the effect of the liquidation (from May 2010) of the family company (which I referred to in my earlier judgment as GCL), and the rights of Mr and Mrs G under a company pension scheme, could not be finally determined in these proceedings in the Court of Protection as they involved persons who were not parties to these proceedings. Further, the parties directly concerned in these proceedings were not agreed on many matters arising in the proceedings themselves.
At a late stage, the parties were able to agree what they wished to happen at this hearing and were able to put before the court a suggested draft order, subject to the court's approval. I am sure that this turn of events owes a great deal to the efforts of the very experienced counsel who have been instructed in this case, supported by their instructing solicitors, and ultimately the good sense of their clients.
At the hearing, I was able to indicate to the parties that I was readily able to approve the greater part of the draft order. In view of the fact that there were no issues raised by the parties as to those parts of the draft order and those parts do not raise any question of general principle, it is not necessary to set out in this judgment what those provisions are, nor the reasons why I am prepared to make these parts of the order in the terms proposed.
However, there was one part of the suggested draft order which seemed to me to involve a question of general principle. In summary, the draft order contained terms directing the Deputy to make payments from Mrs G's funds to her adult daughter, C, by way of maintenance of C. The parties agreed that I could only make an order in those terms if I was satisfied in accordance with the 2005 Act that such an order was in the best interests of Mrs G. Although the parties were agreed between themselves that I had power to make the order, and no one proposed to make submissions to the effect that I should not make the order, I felt that I would benefit from a detailed investigation of the matter and I invited counsel to assist me with their submissions as to why this part of the proposed order was in the best interests of Mrs G, within the meaning of the 2005 Act. Counsel were able to offer considerable assistance on that score and I am now able to reach my conclusion, although I acknowledge that I have not had the benefit of adversarial argument on the point.
In my judgment, the matters debated in the course of argument are of wider general interest such that I should express my reasons in a little detail. The hearing was in private but with the agreement of the parties, I will give this judgment in open court and I will express myself in terms which do not identify the individuals involved.
The judgment and orders of 31 July 2007
I will begin my consideration of the question whether I should direct the Deputy to make payments to C, during the lifetime of Mrs G, by referring to the earlier judgment I gave on 31 July 2007.
As I have explained, my earlier judgment dealt with the position of both Mr and Mrs G. On that occasion I exercised the powers conferred by sections 95 and 96 of the Mental Health Act 1983. I directed the making of statutory wills for both Mr and Mrs G, pursuant to section 96(1)(e) of the 1983 Act. Those wills were subsequently made. I directed that lifetime gifts should be made in favour of C, pursuant to section 96(1)(d) of the 1983 Act. The lifetime gifts in favour of C involved the advancement of substantial capital sums for various purposes and also the provision of continuing maintenance for C. Finally, so far as relevant for present purposes, I directed that a lifetime gift should be made in favour of N, again pursuant to section 96(1)(d) of the 1983 Act.
In my earlier judgment, I identified the principles which I should apply to the matters then before me. I referred to the decision in Re D (J) [1982] Ch 237 for a statement of the principles which I should apply. As is well known, that case directed the court, for the purposes of exercising its powers under sections 95 and 96 of the 1983 Act, to assume that the actual patient was having a brief lucid interval, prior to a certain relapse into incapacity, and during that lucid interval the patient would make a decision on the relevant question. The court would then give effect to the decision which it held that the patient himself, acting reasonably, would have made in that way. In the language which has since become current, this is an example of the court making "a substituted judgment", that is making the decision which the court finds that the patient, acting reasonably, himself would have made.
In my earlier judgment, I considered the decision which Mr G and, separately, Mrs G would have made in relation to the gift of substantial capital sums, in the lifetime of Mr and Mrs G, to C. I also considered the same questions in relation to maintenance of C by Mr and Mrs G. I held that Mr and Mrs G would, in their lifetime, have made the gift of substantial capital sums to C. I gave effect to that decision by directing the receiver for Mr and Mrs G to make those gifts. I also held that Mr and Mrs G would have decided to make maintenance payments to C. I gave effect to that decision in paragraphs 4 and 6 of the order which I made.
By paragraphs 4(1)(b) and 4(2) of the order of 31 July 2007, I directed the receiver to pay the ground rent and service charge due in respect of the London flat in which C was to reside (which was to be owned 50% by C, 25% by Mr G and 25% by Mrs G) and to incur such other expenditure as was necessary to insure, repair and maintain that flat. I directed that these payments were to be borne equally by Mr and Mrs G. By paragraphs 6(1)(a) and 6(2) of the order of 31 July 2010, I directed the receiver to pay a fixed monthly sum to C and that the payments were to be borne equally by Mr and Mrs G. The relevant parts of paragraphs 4 and 6 of my earlier order were expressed to be "until further order".
The parties were agreed as to the effect of the coming into force of the 2005 Act and, separately, the effect of the death of Mr G, on the relevant parts of the orders in paragraphs 4 and 6 of my earlier order.
It was agreed that the coming into force of the 2005 Act (on 1 October 2007) produced the following consequences. The receiver for Mr G and the receiver for Mrs G (being the same person) became the Deputy for Mr G and for Mrs G: see 2005 Act, schedule 5, paragraph 1(2). Further, that appointment as Deputy was subject to the provision in the 2005 Act, schedule 5, paragraph 1(7) that on the death of Mr G, the appointment as the Deputy of Mr G ceased. I agree that these are the relevant consequences of those matters. Indeed, speaking generally, where a Deputy is appointed in relation to P and P then dies, the powers...
To continue reading
Request your trial