Hugh Adrian Scott Jones v Mr Jason Parkin (First Respondent) Miss Margaret Lynne Parkin (Second Respondent) Mrs Janet Miller (Third Respondent) Mrs Margaret Phyllis Johnson (Fourth Respondent) Mrs Gladys Meek (by her Litigation Friend, the Official Solicitor) (Fifth Respondent)
| Jurisdiction | England & Wales |
| Judge | Judge Hodge |
| Judgment Date | 10 April 2014 |
| Neutral Citation | [2014] EWCOP 1,[2014] EWHC 1 (COP) |
| Court | Court of Protection |
| Docket Number | Case No. 11843118 |
| Date | 10 April 2014 |
[2014] EWCOP 1
IN THE COURT OF PROTECTION
SITTING AT MANCHESTER
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ
His Honour Judge Hodge QC
Sitting as a Nominated Judge of the Court of Protection
Case No. 11843118
In the Matter of Gladys Meek
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Counsel for the Applicant: Mr David Rees
Solicitor for the First Respondent: Mr Alan Radford
Solicitor for the Second Respondent: MR Alastair Ross
Counsel for the Third and Fourth Respondents: Mrs Nicola Preston
Counsel for the Fifth Respondent: Miss Ruth Hughes
Judge Hodge QC:
This is my extemporary judgment in the matter of Gladys Meek, Court of Protection case number 11843118. This extemporary judgment is a sequel to, and should be read in conjunction with, an earlier decision of Senior Judge Lush handed down on 22 nd April 2013 and which is reported under the name Re: GM, MJ and JM (as applicants) v The Public Guardian (as respondent) at [2013] COPLR 290.
This is the hearing of an application by Mr Hugh Adrian Scott Jones, the property and affairs deputy for Gladys Meek, for:
(i) authority pursuant to section 18(1)(i) of the Mental Capacity Act 2005 to execute a statutory will on behalf of Mrs Meek; and
(ii) consequential directions in relation to Mrs Meek's property and affairs, and in particular:
(a) an order calling in the £275,000 security bond of Mrs Meek's two former property and affairs deputies, Mrs Janet Miller and Mrs Margaret Phyllis Johnson; and
(b) a direction as to whether the deputy should refer the conduct of Mrs Miller and Mrs Johnson to the police.
The application arises out of the decision of Senior Judge Lush to which I have already made reference. By that decision Mrs Johnson and Mrs Miller were removed as Mrs Meek's property and affairs deputies. In his position statement the deputy's counsel suggests that the present application raises two issues which have wider significance beyond the particular facts of this case. These are said to be:
(i) How should the court approach an application for a statutory will where, as is said to be the case here, there is compelling evidence that it would not be in the incapacitous person's best interests to leave her estate to any family members; and
(ii) What approach should the court take to the calling in of a deputy's security bond in circumstances where it has declined to ratify unauthorised transactions made by that deputy, and which have caused significant financial loss to the incapacitous person's estate.
On the evidence in the present case I am entirely satisfied on the evidence — and indeed it is not challenged — that Mrs Meek lacks the capacity to manage her property and affairs and, in particular, that she lacks testamentary capacity, and that there is no reasonable anticipation that she is likely to have such capacity in the foreseeable future. It is also common ground — and I so find — that Mrs Meek is wholly unable to participate in any decision as to the making of a statutory will, or the calling in of the security bond.
The background to the present application is as follows: Gladys Meek was born in October 1919, and she is now 94 years of age. She was married, but her husband, Bert, died as long ago as 1961. He was at the time some 44 years of age. Gladys and Bert Meek had one child, Barbara, but she died in 2010, aged 67. Bert Meek had died intestate, and letters of administration had been taken out to that estate on 26 th September 1961 by Gladys Meek as his lawful widow and only person entitled to his estate on intestacy. The net value of the estate was £606/8s. Barbara also died intestate, and her estate passed to Mrs Meek absolutely.
Mrs Meek is currently intestate and, as matters currently stand, her estate would be inherited by her niece, Margaret Lynne Parkin, and her great nephew, Jason Parkin. Margaret Lynne Parkin (known as Lynne,) is the daughter of Frank Parkin, Mrs Meek's brother, who died in 1984. Lynne Parkin is now 55 years of age. Jason Parkin is the son of Frank's deceased son, Kevin Parkin, who was Mrs Meek's nephew; and Jason is 43 years of age.
Mrs Meek lives at a nursing home in Derbyshire. She suffers from vascular dementia. A capacity assessment prepared by her GP for the previous two years, Dr Adam Tooley, on 2 nd August 2013, confirms that Mrs Meek lacks testamentary capacity, and that she has suffered from vascular dementia since about the year 2007.
Following the death of Barbara Meek in 2010, two relations of Mrs Meek's late husband Bert were appointed to act as her deputies for property and affairs by an order made by District Judge Batten on 25 th August 2010. Mrs Johnson is aged 61. She is a great niece by marriage, being the granddaughter of Bert Meek's sister, Phyllis. Mrs Miller is 72 and she is a daughter of Bert's sister, Gladys. The appointment of Mrs Johnson and Mrs Miller as Mrs Meek's deputies was joint and several; and they were ordered to obtain and maintain security in the sum of £275,000 in accordance with the standard requirements as to the giving of security.
Subsequently, and in the circumstances related by Senior Judge Lush in his judgment previously cited, Mrs Miller and Mrs Johnson engaged in a course of conduct involving extravagant gifts, not only to charities, but also to themselves and members of their respective families, and involving the purchase of a motor car for each of them, computers, jewellery, watches, designer handbags and football season tickets, and involving very large transfers of cash.
I do not propose to repeat in any detail the matters set out in Senior Judge Lush's judgment. In summary, having made various gifts and transfers of cash, and having been alerted to the fact that such transactions might be outwith the scope of their authority as deputies, in October 2011 Mrs Miller and Mrs Johnson, acting in person, applied (in an application described by Senior Judge Lush as "eccentric") for ratification of unspecified gifts which they had made. In their application they stated that they had "acted as we thought the Court of Protection order granted us, enabling us to gift and donate in relation to the size of the estate". As Mrs Meek was 92 years old, they said that they believed that approximately £200,000 would be adequate, and if that were not enough for her to live, on it was said that there was no way that she would "go short". The court subsequently joined the Public Guardian as respondent to the application and directed investigations into the deputies' conduct. A final hearing took place on 3 rd April, and Senior Judge Lush's written judgment was handed down on 22 nd April 2013.
By the time of the final hearing, Mrs Miller and Mrs Johnson were seeking ratification of gifts of some £231,000 odd and expenses of some £46,000 odd. Senior Judge Lush ratified charitable gifts totalling £57,352, gifts to Mrs Miller and Mrs Johnson and their families totalling £13,500, and gifts to Susan Grimshaw (who is a friend dating back to university days of Barbara Meek) and her family totalling £2,500.
Senior Judge Lush's reasons are set out at paragraphs 95 to 99 of his judgment:
"95. I do not accept that the gifts were made in GM's best interests. They are completely out of character with any gifts she had made before the onset of dementia. There was no consultation with her before they were made and there was no attempt to permit and encourage her to participate in the decision-making process, or to ascertain her present wishes and feelings.
96. Nor do I accept the applicants' argument that they believed that the order appointing them allowed them to make gifts on such an extensive scale. They should have been aware of the law regarding their role and responsibilities. Ignorance is no excuse.
97. The fact that GM's remaining assets were in the names of one or other of the applicants, rather than in GM's name, is a further example of what is, at best, ignorance, and, at worst, stealth.
98. I realise that MJ and JM are the only visitors that GM receives, but this does not give them a licence to loot, and I was unimpressed by the veiled threat that, if the court were to remove them as deputies, they would find it difficult to continue seeing GM.
99. If they had made a proper application for the prospective of approval of gifts, I would possibly have allowed them to make gifts to themselves and their families to mitigate the incidence of Inheritance Tax on GM's death, but only if they had been the residuary beneficiaries under her will."
Senior Judge Lush made an order removing Mrs Miller and Mrs Johnson as Mrs Meek's deputies; and he appointed Mr Jones in their place. He also indicated that he considered that a statutory will application was needed for Mrs Meek. Such indication had been given when Mrs Johnson and Mrs Miller had appeared before him at a directions hearing on 22 nd August 2012. Having given such advice, the Senior Judge recused himself from adjudicating on any statutory will application.
The Senior Judge concluded his judgment as follows:
"100. GM is currently intestate and MJ and JM have no entitlement to her estate on death. It was for this reason that I suggested at a hearing on 22 nd August 2012 that they obtain legal advice and consider making an application for a statutory will. I am surprised that seven...
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