Executors win out in “who should be Deputy” dispute
A lady’s choice of executors was given great weight by the Court of Protection in a dispute over who should be appointed as her deputy.
PAW has Alzheimer’s dementia. She was cared for at home by her husband but as her condition deteriorated he was not able to care for her and she entered a care home. Subsequently her husband, ARW, was also diagnosed with dementia. They have two sons, IW lives locally to them. The company he ran which was funded by a loan from his parents went into liquidation earlier this year. His brother, PW, is the regional general manager of a well known hotel chain and lives in Singapore.
Originally the husband had applied to the Court of Protection for an Order appointing him and two first cousins once removed, SJ and BQ, as his wife’s deputies. The Judge commented “although the relationship sounds remote, they have always been a close-knit family”.
IW objected to the application and wanted to be one of the deputies. He was happy to act along with BQ but did not think his father should act. He was also very unhappy about the contents of the application and wanted it to be struck out. He objected to SJ being appointed, saying that SJ was unsuitable in any capacity where the family’s welfare was concerned.
PAW’s assets are:
- a half share of the family home in Hayes. The house is currently worth about £450,000;
- a half share of a joint loan of £170,000 that she and her husband made to IW to set up the company that recently went bust; and
- investments with Brooks McDonald Asset Management worth approximately £140,000.
At the hearing, the Judge gave great weight to the other son’s views and evidence;
“I disagree with my brother’s objection and request the court to honour my father’s initial recommended deputies, BQ and SJ.
BQ and SJ have known my parents for almost their entire lives. Their mother was my mother’s cousin and best friend. SJ was a bridesmaid at my parents’ wedding (BQ was there too). Together they are the named executors of my parents’ wills and were assigned power of attorney by my father. They were always my closest relatives growing up and were completely trusted by my parents and myself. This is why they were recommended as deputies by my father.
I am a successful hotelier and have worked for [a leading company in the hotel industry] my entire 28 year career. I left the UK in 1999 and have worked in the USA, the Caribbean and Malaysia. I currently reside in Singapore, where I am regional general manager responsible for seven properties. My parents used to travel to visit myself and my family but, due to their failing health, these visits stopped five years ago. Since then I have visited them twice annually and phone weekly. Unfortunately, due to living abroad, there has been a limit as to what assistance I have been able to offer. I rely on my brother and friends and family to keep me appraised of my parents’ condition.
In 2013 my mother’s mental health deteriorated and my father was no longer able to provide adequate care. He decided that she needed to be admitted to a care home. We discussed power of attorney (POA) and at this time my father advised me that, due to me living so far away, it was impractical for me to grant POA or be a deputy for the Court of Protection. I agreed with his decision.
My father also advised me that my brother, IW, would not be a deputy or POA. We have always been treated the same by our parents and he could not select one and not the other.
Also he recognised that myself and my brother were very different and there would be disagreements on decisions that would negatively impact the family. For this reason he selected BQ and SJ to make impartial, unbiased decisions on behalf of himself and also my mother. I agreed with his decision.
My brother and I are very different and do not get along due to our differences. Our communication over the past ten years has been minimal. We only speak to discuss my parents. However, it is extremely difficult to have a sensible conversation with my brother without him becoming very angry.
Living close to my parents, he has regularly visited my parents, though he does not keep me adequately informed of their medical condition or status due to our strained relations.
My brother for the past twenty years has run his own company with money initially loaned by my parents. Earlier this year this company went into voluntary liquidation with significant debt. This includes money loaned and gifted from my parents. My father advised me that this loan was yet to be repaid. This money potentially can be used to pay for care needed for my mother and father. For the reasons given, my brother should not be named a deputy by the court.
My brother objects to SJ being appointed a deputy due to a personal disagreement between them. … This is a personal matter between them and has nothing to do with my mother or father’s affairs. Despite their poor relations, I still believe SJ, as well as BQ, are best placed to make unbiased, sensible decisions regarding my mother’s property, financial and welfare matters.
Regarding my father, ARW, regrettably since submitting the request to the court his own health has deteriorated significantly. My father was diagnosed with Alzheimer’s in Autumn 2014, though my brother did not inform me until April 2015. Due to his deteriorating health, I do not object to my father not being appointed a deputy by the court.
With BQ and SJ already having POA over my father’s affairs, I strongly recommend that the court also appoint them as deputies for my mother, as per my father’s initial request. My parents’ well-being is my only concern”.
SJ, in her evidence, identified a financial conflict between IW and his parents because they had loaned him the money to set up the company which had gone into liquidation. She was concerned about his business acumen and also pointed out that PAW and ARW asked SJ and BQ to look after their finances if they were not able to do it themselves.
IW’s conduct clearly did not impress Senior Judge Lush:
“IW turned up fifteen minutes late with a box of witness statements he wished to file there and then. He said that he had contacted the Court Enquiry Service on 29 July 2015 and had requested a three-week extension of the time in which to file any further evidence. He said that James, the person who took his call, had told him that
(a) he did not need to send the original application notice (COP9), a copy would suffice;
(b) he did not need to wait for a reply from the court;
(c) he could assume that the extension had been granted by the court; and
(d) he did not need to advise the other parties.
I cannot imagine that any member of the Court Enquiry Service would have given such erroneous and irresponsible advice, especially if they were aware that the hearing was listed for 18 August, and I refused to admit IW’s further evidence.
IW also stated that his brother had done a ‘U turn’ and had changed his mind about IW’s application. There was no evidence to substantiate this and, given the long-standing views expressed by PW in his witness statement of 4 July 2015, I simply didn’t believe it”.
Senior Judge Lush made the point that the Court would generally prefer to appoint a relative or a friend rather than a complete stranger. The reason for this is as follows:
“The main reason for preferring family members to strangers, as a starting point, has been respect for their relationship, which is now reflected in Article 8 of the European Convention on Human Rights, but there are other, practical reasons for choosing a family member.
A relative will usually be familiar with P’s affairs, and aware of their wishes and feelings. Someone with a close personal knowledge of P is also likely to be in a better position to meet the obligation of a deputy to consult with P, and to permit and encourage them to participate, or to improve their ability to participate, as fully as possible in any act or decision affecting them”.
Helpfully, Senior Judge Lush highlighted the circumstances “in which the Court would never dream of appointing a family member as deputy.” These are the examples:
a) the proposed deputy has physically, emotionally or financially abused P;
b) there is a need to investigate dealings with P’s assets prior to the matter being brought to the court’s attention, and the proposed deputy’s conduct is the subject of that investigation;
c) there is an actual conflict of interests, rather than simply a potential conflict;
d) the proposed deputy has an unsatisfactory track record in managing his or her own financial affairs;
e) there is ongoing friction between various family members, which is likely to interfere with the proper administration of P’s affairs; and
f) there is a need to ensure that P is free from undue influence, particularly the influence exerted by the person who is seeking to be appointed as deputy.
Decision
Senior Judge Lush decided that PAW’s husband, ARW, should not be appointed because of his own health issues which had become more apparent since the application. The Judge made the point that of course the deputies would consult him.
The Judge also felt that IW should not be appointed;
“I do not intend to appoint IW as his mother’s deputy or one of them because he is his parents’ principal debtor. They may need to realise the funds that he owes them in order to provide for their care in later life. The actual conflict between his interests and theirs is too great to enable him to secure their interests and position in a satisfactory manner.
It is clear that the rest of PAW’s family regard IW as totally unsuitable to be her deputy because he lacks competence and integrity and because he has a poor track record of managing his company’s financial affairs. Section 4(7)(b) of the Act requires me to take into account the views of anyone interested in PAW’s welfare as to what would be in her best interests, and I have done so.”
The Judge appointed SJ and BQ as joint deputies. His reasoning was as follows;
a) “They are suitable relatives who are able and willing to act.
b) They live locally and are able to visit PAW regularly and attend to her needs.
c) PAW appointed them to be the executors of her will. Section 4(6) of the Act requires me to take into account any relevant written statement made by PAW when she had capacity. As I have said on many other occasions, a will is a highly relevant written statement, and PAW’s appointment of SJ and BQ as her executors suggests that she trusted them to deal with her financial affairs after her death, and that she thought they would be business-like and capable of coping with the paperwork.
d) ARW appointed SJ and BQ to be his attorneys under a Lasting Power of Attorney for property and financial affairs, and he clearly trusts them, too. He also proposed them as deputies for his wife.
e) PW considers that the appointment of SJ and BQ would be in his mother’s best interests. I was particularly impressed by his witness statement, and that is why I quoted most of it in paragraph 14 above. It seems to give an articulate and balanced account of the family’s history and current circumstances, whereas IW’s four witness statements, which were admissible, were rambling, hysterical and vindictive.”
Comment
Sadly, disputes among family members as to who should be deputy are not uncommon. In this case, although at first glance the relationship between the proposed deputies and PAW seemed to be remote, they were actually quite closely connected. Senior Judge Lush appears to have given particular weight to the fact that the proposed deputies had also been appointed as executors of PAW’s Will. It is important that we as practitioners check for people the incapacitated person might have trusted with other positions of responsibility as that will have a bearing on the Court’s view about who their deputy should be.
PAW, Re (appointment of a deputy) [2015] EWCOP 57
September 2015
