Two sides to every story but a sting in the tail

A father and a friend who were deputies for a young lady were removed by the Court of Protection and replaced by a panel deputy.  In considering their, rather late, response, Senior Judge Lush was able to see a very different side of things.

Comment

Here, Senior Judge Lush took time to look at all of the evidence in this case and found that the whole picture looked rather different from the one which was initially presented to him.  By separating off money which Edward has access to and money which he does not, and carefully investigating which money is looked after by which party, Senior Judge Lush was able to conclude that the extent of Angharad’s estate was not in itself very great and that a panel deputy was a disproportionate measure. However, Senior Judge Lush did make it very clear that he expected Edward to comply with all of his obligations as deputy and that if he did not, the OPG would be justified in taking him to task.  If Edward does not comply then I am sure this case will come before the Court again.  Let us hope there is no need for that though.

Case Details

These proceedings relate to Angharad who is 21 and lives with her father, Edward, in the Cardiff area.  Her parents went through an extremely acrimonious divorce and her mother died of cancer seven months later.  Angharad has no definitive diagnosis but her disabilities include:

(a) developmental delay;

(b) ptosis (the medical term for a drooping eyelid);

(c) coarctation of aorta (a congenital heart condition); and

(d) dysmorphia (a mental disorder caused by an obsessive preoccupation with a perceived defect in her appearance).

There have been a few deputyship orders in her case :-

“On 16 February 2011 District Judge Susan Jackson appointed Edward to be Angharad’s sole deputy for both property and affairs and personal welfare.

On 17 July 2012, shortly after Angharad’s parents had separated, District Judge Paul Mort appointed both of them jointly and severally to be her deputies for property and affairs and personal welfare.

On 18 July 2014 – almost a year after Jayne’s death – District Judge Stephen Rogers appointed Edward and Gwilym jointly and severally to be Angharad’s deputies for property and affairs and personal welfare.

Gwilym lives in the Cardiff area and is a close friend of the family. He agreed to be appointed as a deputy because he was committed to ensure Angharad’s overall welfare in the event that her father was no longer around. However, he was never actively involved as a deputy”.

The OPG was concerned about the way the deputies had conducted Angharad’s finances and applied for the deputies to be removed and a panel deputy to be appointed in their place.  The Public Guardian wanted to rely on a Court of Protection Visitor’s report but because the identity of a person who had raised concerns was within, they wanted to serve a redacted version which was allowed.  The concerns were :

(a) That Edward had been misappropriating Angharad’s funds and, in particular, a sum of £5,000, which was deposited in a Britannia Building Society account.

(b) Concerns about the whereabouts of the net proceeds of sale of a holiday cottage in Pembrokeshire which had belonged to Angharad’s late mother, Jayne.

(c) Jayne’s residuary estate is held in trust to pay or apply the capital and income to Angharad during her lifetime and, on Angharad’s death, the balance of the trust fund is to be split equally between Marie Curie Cancer Care and Barnardo’s.

(d) In a letter of wishes to the trustees of her will dated 12 June 2012 Jayne had said, “It is my wish that in no circumstances should Edward have any access to the funds held in the trust fund.”

(e) The annual reports for 2011/12, 2012/13 and 2013/14 were still outstanding.

It appeared that no response had been received from Edward although he had said “there are elements in the witness statement of Ruth Evans that appear to be inconsistent or have requested information outside my control. Full details will be provided in 14 days.”

The District Judge appointed the panel deputy in place of the current deputies. This was confirmed by Senior Judge Lush ten days later. Edward applied for re-consideration and the matter was listed for a hearing.  In Senior Judge Lush’s ever pragmatic and helpful way, he suggested a date when he was due to give a talk to the Court of Protection users group in Cardiff so that the matter could be heard at the Cardiff Civil Justice Centre rather than Edward and Angharad having to travel to London.  I wonder if many members of the Judiciary would have been so considerate and empathetic?

Given recent developments on joining P as a party, Senior Judge Lush considered whether to join Angharad as a party but considered her best interests could be served without her having to be joined.

The decision of Senior Judge Lush, which warrants setting out in full, shows just how carefully the Court of Protection looked at the whole of the circumstances:

“I propose to set aside the orders of 10 and 20 April 2015 and to reinstate Edward as Angharad’s deputy for property and affairs. My reasons for doing so are as follows.

There is a recital in District Judge Payne’s order of 10 April 2015, which says that “Edward has not filed any evidence in support of his objection.” This is untrue. Edward did, in fact, file a response on 31 March 2015 (albeit, way out of time), which was date-stamped as having been received by the court on 2 April 2015, but wasn’t immediately placed on the file. District Judge Payne went ahead and made his decision without seeing or considering this response.

Similarly, Edward’s response was not on the file when I made the order of 20 April 2015 implementing District Judge Payne’s order that Timothy Haggar should be appointed as the new deputy by means of a separate order setting out his duties and the scope of his authority.

I accept Edward’s reasons for being unable to produce the annual deputyship reports for the years 2011/12, 2012/13 and 2013/14.

He said that did not produce the first report, for the accounting year 2011/12, because he was never asked to produce one. I know from my own experience that this is consistent with the OPG’s practice at the time. In fact, the Public Guardian only asked him to file a report in October 2012 after concerns had been raised regarding his conduct.

I accept Edward’s account that, when he and Jayne split up, Jayne took all the paperwork relating to Angharad’s finances with her, and that this paperwork (if it still exists and wasn’t disposed of in the clearance of her house after her death) is possibly held by the trustees of Jayne’s will, with whom Edward has a rather negative relationship.

There is a Court of Protection General Visitor’s report of an interview between the visitor and Jayne on 14 April 2013. The visitor noted that: “Since she moved out of the matrimonial home, Jayne has been having all of Angharad’s mail rerouted to their new address.” The visitor also stated that: “Jayne informs me that she is now in full control of her daughter’s income and assets.”

I accept Edward’s explanation that the sum of £5,000 deposited in a Britannia Building Society account does not form part of Angharad’s free estate but was a gift made to him by his mother, Rita, to apply for Angharad’s benefit. Rita’s sister, Nova, had died intestate. Rita inherited the entire estate, and had given her three sons £5,000 each for the benefit their children. These funds were to be spent as they thought fit. Edward had opened the Britannia account for this purpose.

Edward’s explanation is corroborated by Anita Ray, who is a retired bank official, in her witness statement dated 3 January 2015. It is also consistent with a statement in the visitor’s report: “Jayne informs me that she had no idea this account existed.”

I do not know who the whistle-blower or concern-raiser was in this case. However, I believe Edward’s submission that, following her diagnosis of terminal cancer, Jayne’s attitude towards him changed completely and that their relationship broke down rapidly. There was a sharp polarisation between friends who supported Edward and those who supported Jayne, which was intensified by the brevity of Jayne’s anticipated life expectancy, and I assume that the whistle-blower was one of her adherents.

The concern-raiser’s suggestion that Edward may have misappropriated the net proceeds of sale of Jayne’s holiday cottage in Pembrokeshire was unfounded and potentially malicious. Jayne left her estate to her trustees. They sold the property for £140,000 and the net proceeds of sale are currently held by the trustees’ solicitors, Hugh James.

Jayne’s memorandum to the trustees of her will dated 12 June 2012 – “It is my wish that in no circumstances should Edward have any access to the funds held in the trust fund” – cannot be construed as an effective challenge to his probity or integrity. It is simply a caustic comment made in the heat of the moment by someone involved in a rancorous divorce.

Apart from the funds that are held in trust for her, Angharad has very little money indeed, and the appointment of a panel deputy is totally disproportionate. It is also unfortunate that the panel deputy who was selected is based in Haverfordwest, which is about a hundred miles from where Angharad and Edward live.

Since Jayne’s death in July 2013 Angharad has lived with her father. I could tell from her attendance at the hearing on 17 September 2015 that she is very fond of him and I have no doubt that the acknowledgment of service she completed on 18 November 2014 opposing the application and wishing to maintain the status quo is a true reflection of her wishes and feelings then and now.

I do not consider that there are sufficient grounds to justify overriding Angharad’s and Edward’s rights under Article 8 of the European Convention on Human Rights. There is no need for the State to intervene for the avoidance of crime because, as far as I can see, Edward hasn’t committed any crime and, because of the numerous safeguards that are in place, it would be difficult, if not impossible, for him to misappropriate Angharad’s funds. Jayne’s trustees have a discretion regarding the application of any funds under her will trust. The local authority will monitor his use of the direct payments to which Angharad is entitled, and Edward’s management of the limited resources in Angharad’s free estate will be supervised by the Public Guardian in the usual way.

Having regard to all the circumstances, therefore, I am not satisfied that Edward has behaved, or is proposing to behave, in a way that contravenes the authority conferred on him by the court, or is not in Angharad’s best interests.

As I have already said, I believe Edward when he says that he doesn’t have access to the necessary paperwork and, pursuant to section 16(5) of the Mental Capacity Act 2005, I propose to waive the requirement for him to produce the annual reports for 2011/12, 2012/13 and 2013/14. He can start with a clean slate. Having been the subject of an extensive investigation by the OPG, he should by now be fully aware of the obligations and duties of a deputy and the standards that are expected of him. He will also be aware that, in the event that he fails to live up to those expectations, the OPG will come down on him like a ton of bricks.

Quite an explanation!

December 2015

Re; AJ – The Public Guardian and EJ – [2015] EWCOP 62