Rs and Dg v Jg
| Jurisdiction | England & Wales |
| Judge | Senior Judge Lush |
| Judgment Date | 06 November 2014 |
| Neutral Citation | [2014] EWCOP 42 |
| Court | Court of Protection |
| Date | 06 November 2014 |
| Docket Number | Case No: 12537655 |
[2014] EWCOP 42
Senior Judge Lush
Case No: 12537655
In the matter of PMB
Michael Overend of Charles Lucas & Marshall for the Applicants
The Respondent in person
Hearing date: 4 November 2014
This is a dispute amongst siblings over the appointment of a deputy to manage their mother's financial affairs.
The family background
PMB was born in 1927 and lives in Berkshire. She used to be a cleaner for some of the more affluent residents in her village.
She married her first husband in 1947 and divorced him in 1976. He was a farm labourer, who later worked as a lorry driver. She married her second husband, who was a carpenter, in 1984 and he died seventeen months later in 1986.
She has five children from her first marriage, namely:
(a) her elder son, JG, who was born in 1947 and lives in Norfolk;
(b) her eldest daughter, RS, who was born in 1950, is a retired nursing assistant, and lives in Northamptonshire;
(c) her middle daughter, KH, who was born in 1952 and lives in Australia;
(d) her younger son, MG, who was born in 1955 and lives in Devon; and
(e) her youngest daughter, DG, who was born in 1964, is a stock room assistant, and lives near to her mother in Berkshire.
On 24 September 1999 PMB made a homemade will in which she:
(a) appointed her youngest daughter, DG, to be her sole executrix;
(b) made several specific bequests of jewellery and personal chattels to her children and grandchildren; and
(c) left her residuary estate to her five children in equal shares.
PMB has Alzheimer's type dementia, which was first diagnosed in 2012, and since 24 February 2014 she has resided in a nursing home.
She has savings of approximately £25,000, most of which is held in an account with the Newbury Building Society.
On 18 July 2014 DG and RS applied to be appointed jointly as her deputies for property and affairs. Charles Lucas & Marshall Solicitors, 28 Bartholomew Street, Newbury, Berkshire RG14 5EU acted for them in connection with the application.
The objection
On 5 August 2014 JG completed an acknowledgment of service in which he objected to the application. He said:
"In view of my mother's current modest financial situation I do not believe the application made by my sisters to be appointed her deputies has been made with respect to her best interests but has been made maliciously and with the intention, based on sibling disagreements, of continuing to exclude me from participation in my mother's affairs. Requests by myself to be included in matters directly related to my mother have been ignored by both applicants and they continue to refuse to communicate with me. Recently, among other things, they have denied me access to and have undertaken the clearance of the contents and personal effects from my mother's previous home whilst refusing to advise me of how and where these items (some of sentimental value) have been disposed of. I do not believe that my mother would have either wished for or approved of these actions.
I also do not consider DG an appropriate person to manage my mother's financial affairs because of her past inability to manage her own personal finances which have resulted in her running up several thousand pounds of debt. I also understand that social services have recently found it necessary to advise her in respect of her incorrect handling of one or two matters relating to our mother's finances.
With these points in mind and no possibility of any sibling agreements being achieved in the future on matters concerning our mother I feel it would be in her long term interests if the court were to appoint an independent panel deputy to administer her affairs forthwith."
On 9 September 2014 I made an order:
(a) warning the parties as to the costs of these proceedings, which were in the court's discretion and may not necessarily be payable from PMB's estate;
(b) requiring an officer of the court to send a copy of the respondent's acknowledgment of service to the applicants' solicitors;
(c) requiring the applicants to respond by 3 October;
(d) allowing the respondent to file and serve a witness statement by 24 October; and
(e) listing the matter for hearing on 4 November 2014.
The witness statements
On 30 September 2014 DG filed a witness statement, in which she said that.
(a) JG had been estranged from his siblings for many years;
(b) in the last year he had only visited their mother once;
(c) DG has been informally looking after her mother's financial affairs since the onset of her incapacity about two years ago;
(d) PMB had occupation rights over her house under the terms of her late husband's will. Once she had moved permanently to a nursing home it became necessary to clear the house of furniture and effects;
(e) DG proposed to distribute the chattels in accordance with the terms of her mother's will;
(f) it would not be practical for JG to be appointed as deputy jointly with the applicants: he refuses even to disclose his address to them;
(g) an offer was made to send him a copy of the annual report to the OPG, but so far he has not accepted this offer; and
(h) it would not be cost-effective for a panel deputy to act in this case.
On 17 October 2014 JG filed a witness statement, in which he said that:
(a) he and his wife had lived in Spain from 1997 until 2011, when they returned to England and bought a house in Norfolk.
(b) in December 2011 he had visited his mother and was dissatisfied with the standard of care that his sister, DG, was providing. He had offered to move PMB to Norfolk but the rest of the family turned down his offer.
(c) to avoid the costs of a contested hearing, he told the applicants' solicitors that he would be prepared to withdraw his objection if he were appointed as a joint deputy with the applicants. However, his sisters were unwilling to proceed on that basis.
(d) he had not responded to the applicants' offer to provide him with a copy of their annual accounts because he felt that "deputyship encompasses more than just financial matters" and his acceptance would have been tantamount to approving their application.
The hearing
The hearing took place on Tuesday 4 November 2014 and was attended by:
(a) the applicants and their solicitor, Michael Overend, of Charles Lucas & Marshall; and
(b) the respondent and his wife, Dorothy.
JG had not wished his address to be disclosed to any of his siblings because he lived in perpetual fear of violence from them following an altercation in PMB's house on her 85th birthday in August 2012, when his brother, MG, and RS's husband had manhandled him.
JG had contacted the Court Enquiry Service, who told him that the court may be prepared to allow him to keep his address confidential but, unfortunately, he gave no indication of this in his acknowledgment of service, and my directions order of 9 September clearly stated his address as well as that of the applicants' solicitors.
Apart from her jewellery, which DG is looking after, PMB's personal chattels are currently being stored at RS's house, because she has space in which to store them. In her will PMB has left her "mirror with the aeroplane detail and all the old family photographs" to JG. It transpired that he had already received all the old family photographs and the mirror, which features images of the Battle of Britain, is currently in storage at RS's house.
The law relating to the appointment of a deputy
Sections 1 to 4 of the Mental Capacity Act 2005 provide that, once it has been established that a person lacks capacity to make a particular decision at a particular time (such a person is referred to as 'P' in the Act), then any act done or any decision made by someone else on P's behalf must be done or made in her best interests.
The Act does not define 'best interests', but section 4 provides a checklist of factors that anyone making the decision on...
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...members appropriate where substantial damages for personal injury have been awarded. In the matter of PNB between RS and DG and JG [2014] EWCOP 42: If a person needs a Deputy as a result of the injury they have suffered, the costs of appointing that Deputy and the work that Deputy will do o......