Son appointed as deputy after local authority refused to act jointly
In this case, there had been concerns about the conduct of one of the sons who was a benefits appointee.
Comment
This case is reasonably unusual because family circumstances have changed and the local authority, which is normally the Deputy of second last resort before a panel Deputy, did not want to step down. I have had experience of other local authorities declining to step down, arguably in cases where they were not actually best equipped to deal with the complex issues which were going to arise on a case.
Senior Judge Lush had seemed to prefer the joint approach because one Deputy could be accountable to another but failing that being an option, put in place safeguards to ensure that the son conducted himself in the right way as Deputy.
At the time that the local authority applied to be Deputy, no other family members were able to act as Deputy. Circumstances changed and one son asked if he could act alongside the local authority. The local authority said that they only ever acted alone. There was therefore a hearing to determine whether the local authority should stay in place or whether the son should act.
Case Details
These proceedings related to Joan who is 95 and a widow. She had seven children but one of those, Daphne, had died. Joan was in care and her daughter, Sheila, had a learning disability and East Sussex County Council were her Deputy. Joan’s cottage was worth approximately £350,000 and she would also inherit her deceased daughter Daphne’s house which is currently worth about £150,000. There was however evidence that if £35,000 was spent on the property it could sell for £200,000 to £220,000. Daphne had in fact died in the property and not been found for two months.
There had been concerns over Joan’s son, Desmond’s handling of her funds in that he had not paid her care fees. At the time no family members were willing or able to act. However, Geoffrey’s circumstances had changed and he now wanted to be appointed along with East Sussex County Council.
Geoffrey said that:
I understand that an order was made appointing the Council as deputy for my mother in December 2013, although I have not seen a copy of the order. At that time, I was not living in close proximity to my mother, was working a lot of hours and had other commitments. I did not think it would be in my mother’s best interests for me to be appointed as her deputy. I therefore did not oppose the Council’s application.
As my personal circumstances have changed and I am coming up to retirement, I now have more time and am able to be much more actively involved in my mother’s arrangements and wish to be so. I also now understand more about the role of a deputy and realise that it is not essential for me to live any closer to my mother than I do. I am able to visit her at least once a fortnight, which is certainly more often than anybody from the Council.
I have made enquiries with the Council on numerous occasions in order to try to establish that things are currently arranged in the most favourable way possible for my mother, but have been unable to obtain any information due to my current lack of legal authority. The Council also appear to be quite disorganised in dealing with such enquiries and this has led me to be concerned about the Council’s ability to act on her behalf. Whilst the Council are no doubt providing accounts to the court and are required to act in my mother’s best interests at all times, I am concerned that, due to their case load, they do not have sufficient time to dedicate to each individual matter and cannot fully take into account in any detail my mother’s individual personal circumstances and be proactive in their decision making on her behalf.
One matter of particular concern to me is that the Council are planning to sell a property which my mother has inherited from my sister. The property is in a poor state of repair following my sister’s death, as she died in the property and her body was not discovered for two months. My mother will be inheriting my sister’s entire estate under the intestacy laws, but it has been very difficult to deal with the estate with the Council acting as my mother’s deputy. I incurred significant costs myself in making arrangements following my sister’s death, including paying the funeral expenses, arranging for the central heating to be fixed at the property, replacing the doors and getting the property cleaned once my sister’s body had been removed. However, I found that the Council were not very cooperative in making arrangements for me to be reimbursed from the estate, even when the estate received a payment from an insurance company.
The current estimated value of the property is £149,000. I am a builder and have estimated that the cost of carrying out the necessary repair and refurbishment works is likely to be in the region of £35,000, following which the value of the property would be enhanced to £220,000. I have contacted the Council and offered to fund the works myself in order that the property value can be increased before a sale takes place. However, the Council have indicated, without explanation, that they do not wish to pursue this option. I fail to see how it cannot be in my mother’s best interests to obtain the best possible price for the property as this would help to secure her future financial position, thereby ensuring her security of occupation at the care home where she currently resides. In addition, I am concerned that the condition of the property is continuing to deteriorate as the Council are not dealing with essential repairs and maintenance. The house is getting damp due to a leak and one of the neighbours is seeking to take part of the garden. Therefore, the value of the property may continue to drop. Again, I would be willing to take responsibility for maintaining the property until a sale in order to protect the value for my mother, but am not prepared to do so if the Council will not arrange reimbursement in due course.
Whilst I accept that it was in my mother’s best interests for the Council to be appointed as deputy in 2013, when no individual family member was able to fulfil that role, now that I am able to be involved, I feel that it would be in her interests for a family member also to be appointed so that we can be more ‘hands on’ and proactive in managing things on her behalf. My mother has six living children and I feel that it would be beneficial to her for one of us, with our personal knowledge of her, to act with the Council in making sure that any arrangements made are as advantageous to her as possible. The Council simply does not have the capacity to be as actively involved in my mother’s affairs as is necessary to protect her and her financial position”.
The local authority objected. They said that Geoffrey had not been to visit Joan for over a year, Joan had entered the end stage of dementia care and a change in her financial circumstances would not be appropriate, Geoffrey had said that his siblings agreed to his appointment but had not provided evidence, and had said that they were adhering to Joan’s wishes including non-payment of rent by her daughter Sheila. The local authority also had concerns about Geoffrey’s costs and expenses:
“Geoffrey says he will not charge for his work. However, he has put in a claim for charges for the work he has carried out on Joan’s behalf in dealing with the estate of his sister Daphne. He has charged for his time at £150 per day, a total amount of £3,150. He has also charged £2,192.40 for his travel costs.
Geoffrey’s full request for reimbursement for the cost of his expenses is £13,757.20. ESCC have asked him to provide receipts before reimbursement can be made from the estate and he has been reimbursed for the funeral costs and boiler repairs as these receipts have been provided. Not all receipts have been provided and there are insufficient funds in the estate until the property is sold for any further reimbursement to be made.
Geoffrey’s dispute with ESCC acting as deputy began following the decision made by the deputy to sell his late sister’s property in Hailsham in its current state. Geoffrey had submitted a quote for £36,500 for the costs of works to the property. For transparency and best value SSCC policy is to obtain 3 independent quotes for the cost of any works. In this case they were unable to do so as the cost of works cannot be paid until after the property has been sold.
ESCC feel that it would be a conflict of interest for Geoffrey to be appointed deputy, as he stands to make a financial gain from the cost of the building works to his late sister’s property and the reimbursement of his time and travel costs in dealing with her estate.”
Geoffrey revised his application to ask to be appointed on his own as he felt that relations between him and the Council had broken down and that he was concerned by the Council’s decision not to refurbish Joan’s property.
Senior Judge Lush considered the authorities and allowed Geoffrey to be appointed as Deputy in place of East Sussex County Council. He said that:
“My main reason for appointing him is that I think it would be sensible to repair and renovate the house in Hailsham that Joan inherited from her daughter Daphne so that it can be sold to best advantage, and I am prepared to give it a try.
Geoffrey produced a letter dated 25 January 2015 from Peter Brazier of Simon Marden Estate Agents, who said:
“Thank you for your kind hospitality when showing me around the property yesterday. As discussed, I feel that the property has some extremely saleable features, including the ideal location, being situated within easy reach of Hailsham town centre along with having substantial gardens to the rear of the property. Whilst the property does require complete refurbishment and the gardens cleared of all overgrown vegetation and tidied, it could be marketed in its current condition to investor buyers. Alternatively, you may prefer to carry out the renovation yourself and then market the property. …
If the property were to be marketed in its current condition, given the present market and comparing similar properties recently sold and currently being marketed within the area we would expect to achieve offers in the region of £145,000. However, if the property were to be marketed after refurbishment, we would expect to achieve a sale between £200,000 and £220,000.”
Arguably, Joan will never benefit personally from this transaction, but her estate will, and she has six children, all of whom are either pensioners already or are rapidly approaching old age”.
Senior Judge Lush was concerned about the potential conflict of interest that Geoffrey was faced with. Senior Judge Lush commented “Unfortunately, in Joan’s case, there is no prospect of one deputy acting as an effective safeguard against the conflicts of interest of the other, because Council has refused point blank to act jointly with Geoffrey”.
In order to control the conflict of interest, Senior Judge Lush put the following safeguards in place:
(a) Geoffrey shall be entitled to be reimbursed out of Joan’s funds for his reasonable out-of-pocket expenses in discharging his functions as deputy, but he shall be allowed to charge mileage for only four visits a year. Because Joan is comfortably ensconced in a care home, I consider that four visits should be sufficient for him to comply with his duties as deputy. If he wishes to visit her more frequently, then he should do so gratuitously, as one would hope that any loving son would do gladly.
(b) He shall not be entitled to any remuneration for acting as Joan’s deputy. “The office of [a deputy for property and affairs] must generally be regarded as a gratuitous one, unless by an order of the court or by legislation a special arrangement to the contrary is made”: Ability One Financial Management Pty Limited and Anor v JB by his Tutor AB [2014] NSWSC 245 (17 March 2014), per Lindsay J. of the Supreme Court of New South Wales, at paragraph 28.
(c) He shall, however, be allowed to charge his daily rate of £150 in respect of his functions as a builder when he is refurbishing Daphne’s property. This daily rate includes mileage, as I understand that he will be staying at the property while he refurbishes it, rather than commuting from Cambridgeshire.
(d) He shall be expected to keep within his proposed budget of £35,000 for the refurbishment works. Any anticipated expenditure in excess of that sum must be approved in advance by the court.
(e) He shall have authority to sell Daphne’s property when the building works have been completed.
(f) He shall not have authority to sell Joan’s cottage in Uckfield, in which his siblings Sheila and Desmond reside, without further order of the court.
(g) He shall be required to give security in the sum of £250,000, the annual premium for which (£500) shall be payable from Joan’s estate; and
(h) He shall be required to account annually to the Public Guardian, who has a statutory duty to supervise him under section 58(1)(c) of the Mental Capacity Act and to ensure that his personal interests do not conflict with his duty to act in his mother’s best interests.
It will be interesting to see whether everything works like clockwork or whether we see mention of Joan and Geoffrey further down the line.
December 2015
GGW and East Sussex County Council – [2015] EWCOP 82
