How not to make friends with the Public Guardian

A deputy who sent the Office of the Public Guardian a bill for his time spent dealing with them has been removed by the Court of Protection.

Unusually for a decision of this kind, there was no suggestion of any financial wrongdoing; it was the deputy’s consistent failure to co-operate with the OPG that contributed to the decision.

The Judgment (Citation number [2015] EWCOP 21) was a decision made by District Judge Rogers. The decision was to revoke MP’s appointment as his partner’s Deputy for Property and Affairs and invite a panel deputy to be appointed in his place.

CJ and MP had been together for 25 years. She was an only child, her parents are dead and she has no contact with the uncles, aunts and cousins who are her nearest relatives. She received a personal injury settlement of £300,000 because of a delay in resuscitating her after a heart attack. She also had a stroke which compounded the brain damage.

MP and CJ used to run a boarding kennels and cattery together and he has continued to run that business. Senior Judge Lush explained that deputies have to submit accounts to the Office of the Public Guardian and although the deputy’s accounting year usually runs with the date of the Order, if there is a family business the OPG will sometimes vary their requirements so that the deputy can use the same accounting year as the business.  That is what happened here.

Unfortunately, MP did not provide accounts between 2011 and 2014. The Court directed him to do so but even then he did not. The Office of the Public Guardian had also asked in their application that MP be ordered to comply with his duties as deputy.  The Judge described this as unprecedented.  MP was therefore ordered to:

a) Provide specified information to the Public Guardian by means of an annual report or as and when the Public Guardian feels it necessary or expedient to request a report pursuant to regulation 41 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007;

b) Facilitate visits by a Court of Protection Visitor as and when required by the Public Guardian pursuant to regulation 44; and

c) Comply with requests made by the Public Guardian

MP failed to comply.

At the start of the application the OPG mentioned the concerns about the annual reports but also the fact that OPG supervision fees were unpaid and that MP insisted the Deputyship Order only covered CJ’s £300,000 damages award which he had left in a special account for safety (and also in the hope that there would be a breakthrough in neuroscience and CJ would become eligible for stem cell therapy which could be funded by this award), and did not extend to the rest of her affairs.

When a Court of Protection Visitor attempted to visit CJ, MP would not let him see her. As what might be considered the final straw, MP sent the OPG a bill totalling £1,675.09 representing ten days of his labour at £150 per day, a camcorder to record any future visits from the OPG, a microphone to record telephone calls to the OPG and charges for postage. MP did however produce a report from his accountants which related mainly to the business and the fact that profits had been ploughed back into it.
Senior Judge Lush described MP as “faintly endearing”. He did accept that he had lost his temper from time to time and apologised but unfortunately “he was still defiant”.

Senior Judge Lush noted there were two grounds for revoking the appointment of a deputy. One is behaviour in a way that contravenes the deputy’s authority and the other is behaviour that is not in P’s best interests.  Senior Judge Lush made the important point that “because these grounds are mutually exclusive, a deputy could have acted in P’s best interests at all times but, if he has contravened the authority conferred on him by the court, his appointment as deputy can be revoked”.

Senior Judge Lush commented:

“I am absolutely certain that there has been no dishonest misappropriation of CJ’s funds by MP, but that’s not the point. When he applied to be appointed as CJ’s deputy, MP completed a deputy’s declaration (COP4) in which he gave various undertakings, such as: I will comply with any directions of the court or reasonable requests made by the Public Guardian, including requests for reports to be submitted, and I will co-operate with any representative of the court or the Public Guardian who might wish to meet me or the person to whom the application relates to check that the deputyship arrangements are working.”

Senior Judge Lush felt that in this case, “to turn a blind eye to MP’s wilful refusal to comply with his duties would erode and undermine the safeguarding work carried out by the OPG’s supervision and compliance teams, which cannot possibly be in the public interest. It would also ride roughshod over the court’s obligations under international human rights law to ensure that the protective measures it makes contain appropriate and effective safeguards to prevent abuse: United Nations Convention on the Rights of Persons with Disabilities, Article 12.4”.

Senior Judge Lush invited a panel deputy to apply to be appointed as CJ’s deputy, asking the panel deputy to look at a number of things included whether there was a less restrictive way of managing CJ’s property and financial affairs, whether the funds should remain on special account or whether they should be deposited elsewhere and whether a personal injury trust should be created to manage CJ’s damages award (although no criteria were given as to what may suggest one should be). The panel deputy was also invited to look at whether CJ’s damages award should be kept in case stem cell treatment becomes available or whether it would be better to apply the award for the purposes for which it was intended at the time of settlement. Finally, Senior Judge Lush suggested that a Statutory Will for CJ also ought to be sorted out.

Comment 
This is an unusual case where a deputy was removed even though MP had not stolen or misused money. There is all too steady a stream of cases of attorneys and deputies doing exactly that. However, the Public Guardian needs to be able to do his job and ensure that deputies are acting within the authority the Court have given them. If a deputy will not co-operate then the supervision system cannot function. That is why the deputy was removed here.

There is no record in the Judgment of whether the OPG had actually paid the bill, but we assume not!

Case: CJ, Re [2015] EWCOP 21 (25 March 2015)