VL v JD and Another
| Jurisdiction | England & Wales |
| Judge | Senior Judge Lush |
| Judgment Date | 11 March 2015 |
| Neutral Citation | [2015] EWCOP 14 |
| Court | Court of Protection |
| Docket Number | Case No: 1255587T |
| Date | 11 March 2015 |
[2015] EWCOP 14 (Fam)
Senior Judge Lush
Case No: 1255587T
Re PL
and
Andrew Morrell (instructed by Wellers Law Group) for the Applicant
The respondents in person and not represented
Hearing date: 4 March 2015
The person to whom these proceedings relate is PL and the parties are:
(a) his son, VL, who is 54, self-employed, and lives with his partner, SJ, in Lee, London SE12;
(b) his elder daughter, JD, who is 51, lives in Bexleyheath, and is a civil servant; and
(c) his younger daughter, LA, who is 43, lives in Erith, and is a childminder.
This is an objection by PL's daughters to his son's application to be appointed as his deputy for property and affairs.
The background
PL is 78. He was born in Lewisham; left school at the age of fifteen, and set up his own manufacturing company in Beckenham, which at one stage employed twenty people. He sold the business in 1987, when he was fifty, and spent a few years as a house husband until his wife retired. In 2000, they packed their bags and went to live in Spain on what they intended to be a permanent basis.
While he was in Spain, PL got into the habit of drinking harmful levels of alcohol. His average daily intake was three litres of white wine and several glasses of homemade cherry brandy.
In August 2012 he kept falling over. His daughters flew to Spain to investigate the problem and discovered that he had experienced a series of transient ischaemic attacks or mini-strokes. He and his wife were immediately repatriated to England.
PL was admitted to Darenth Valley Hospital and, on being discharged in September 2012, he went to live with VL and SJ in Lee. PL's wife, who was already living with them, died of a stroke at the end of October 2012.
With the agreement of VL's sisters, SJ gave up her job as a private hire driver in order to become PL's full-time carer. They also agreed that she could be paid £400 a week from PL's funds for looking after him and that VL and SJ could receive £100 a week for his board and lodging.
The application
On 4 July 2014 VL applied to the Court of Protection to be appointed as his father's deputy for property and financial affairs. Wellers Law Group in Bromley assisted him in making the application.
In addition to the standard form of assessment of capacity (COP3), completed by PL's general practitioner, the application was accompanied by a more detailed psychiatric report written on 15 September 2013 by Dr Bastiaan Veugelers, a consultant psychiatrist at The Priory Clinic in Canterbury. This report concluded with the following opinion:
"PL has moderate dementia which may be caused by blood flow problems in the brain as in vascular dementia, past alcohol misuse and possibly an additional component of Alzheimer's disease, which is dementia caused by abnormal accumulation of proteins in the brain. Additional investigations with brain imaging may allow us to differentiate between these different causes of dementia, but it will be a chronic disorder that will have a tendency to slowly get worse over time, even with treatment, with the potential to further compromise his ability to make decisions.
I think he lacks capacity both to manage his finances and also to sign a lasting power of attorney document. As illustrated above, he fails on elements of understanding, as well as retaining, as well as weighing in the balance various bits of information. There is an added element of being incongruently unconcerned and laid back about the situation, which means that he will be suggestible with a tendency to agree with the person who he is talking to at the time."
In the form containing supporting information for property and affairs applications (COP1A), VL declared that his father's assets were as follows:
| Freehold business premises in Beckenham | 450,000 |
| Property in Spain | 100,000 |
| NatWest current account | 13,000 |
| NatWest savings account | 13,000 |
| Lloyds Bank business account | 2,000 |
| Personal effects | 2,000 |
| £580,000 |
PL's income is just short of £31,000 a year and consists of:
The objections
| Rental income from the premises in Beckenham | 18,000 |
| State retirement pension | 9,385 |
| Attendance allowance | 3,609 |
| £30,994 |
On 10 November 2014 PL's daughters, JD and LA, filed acknowledgments of service in which they objected to their brother's application and suggested that the court should make:
"A joint order for the three siblings so that both daughters know what the brother is doing in relation to my father's finances and his welfare or else a third party is made deputy who can keep us informed."
These acknowledgments of service were accompanied by witness statements, in which the respondents gave more detailed reasons in support of their objections but, in essence, their concerns were about a lack of communication and a lack of transparency.
On 7 January 2015 I made an order setting out a timetable for filing and serving any further evidence and listed the matter for an attended hearing on 4 March 2015.
VL filed and served a witness statement on 10 February, and the two respondents filed witness statements with the court on 23 February, but unfortunately they failed to realise that they were supposed to send a copy to their brother's solicitors, too.
The hearing took place on Wednesday 4 March 2015 and was attended by:
(a) Andrew Morrell, a solicitor-advocate with LPC Law, and VL and SJ; and
(b) the respondents, JD and LA, who were unrepresented, but were accompanied by Jennifer McGrandle of the Personal Support Unit.
The friction between VL and his sisters began shortly after their parents returned to England from Spain in August 2012. There had been mutual allegations of financial abuse and the respondents had formally complained about VL and SJ to Kent County Council, who investigated their complaints and dismissed them.
Mr Morrell's submissions
Mr Morrell submitted that there were three options available to the court:
(a) to appoint VL as deputy;
(b) to appoint VL and one or both of his sisters as joint deputies; or
(c) to appoint an independent panel deputy.
He thought that a joint appointment would be fraught with difficulties and even the most minor decision could become a bone of contention. For example, it is now essential, and clearly in PL's best interests, that a stair-lift is installed, but any discussion of this will inevitably lead to a disagreement. In his witness statement VL expressed the following opinion on a joint appointment:
"This would be simply unworkable. [My sisters] have already shown that they are not in the slightest bit interested or concerned with my father's welfare. They are interested in his money. They have already shown no inclination to agree that essential payments be made for his wellbeing and, if they were made joint deputies, I fully expect that they would stand in the way of such essential payment. A good example is the shower. If I had had to obtain their consent before spending my father's money on this installation, I very much doubt that such consent would be forthcoming. However, the shower is absolutely essential for my father's health, wellbeing and his own peace of mind. Another good example is the car. My father would simply not be able to attend essential GP and hospital appointments without it."
"Realistically", said Mr Morrell, "the only choice is between VL and a panel deputy." He submitted that the factor of magnetic importance in this case was the fact that VL and SJ have looked after PL extremely well for the last two and a half years, and stated that there was no need to incur the costs of a panel deputy, which, according to the calculations in Re DT [2015] EWCOP 10, would exceed £6,000 during the first year alone.
Decision
I have decided to appoint VL as the sole deputy to make any decisions that PL is unable to make for himself in relation to his property and affairs.
I intend to confer general authority on VL as deputy to take possession or control of PL's property and affairs and to exercise the same powers of management and investment as he has as beneficial owner, including the power to sell or let his properties in Beckenham and Spain.
I agree with Mr Morrell that VL has looked after PL satisfactorily for the last two and a half years, and I am prepared to give him the benefit of the doubt, particularly as the exercise of his powers will be hedged about on all sides with statutory protection for PL.
Discussion
The striking feature of this case was that neither the applicant nor the respondents had any idea about the fiduciary duties and practical responsibilities that a deputy is expected to undertake and the roles of the Court of Protection and the Office of the Public Guardian ('OPG') in ensuring his compliance.
As I was describing these obligations to everyone at...
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FAMILY FIDUCIARIES IN THE PROTECTIVE JURISDICTION.
...(Judge Marshall), providing detailed guidance on setting the level of security bond; London Borough of Enfield (n 88) [6]; Re PL [2015] EWCOP 14 (Fam), [27] (Senior Judge (91) NSW Trustee and Guardian Act 2009 (NSW) s 76; Guardianship and Administration Act 2000 (Qld) s 54; Powers of Attorn......