When is an independent professional deputy not independent enough?
Comment
Here we see another sad family dispute. The practice point for us to take from this though is whether somebody who has been acting for one of the parties can switch to a different role and become an independent professional deputy. The answer, quite rightly, is no. There may be non-contentious situations where a family member is not approved by the Court for whatever reason and I can see that in that case a solicitor could be appointed as a professional deputy without difficulty. However, here we had a situation where in a previous guise the deputy had been acting for one side on a contentious family dispute against others in the family and to move from that position to be an independent and neutral deputy would just be too much of a leap.
Case Details
The Court declined to appoint a proposed professional deputy who had acted for one of the parties in a dispute.
This case involved Ron, a former tobacco trader from West Sussex, who had a less than straightforward family life. He had been married three times and had four children from the first marriage and one from the second marriage. His third marriage, to an Italian, was short lived.
The Court decided to replace an interim deputy who had acted for one of the parties in a family dispute.
As well as a flat worth £450,000 and £75,000 in a bank account, Ron receives a regular income from a tobacco company in the United States, which he set up himself and is now run by one of his children.
There were tensions between Ron’s four children from his first marriage and Z, his daughter from his second marriage. Z applied for a solicitor to be appointed as Ron’s deputy and said,
“Due to suffering with dementia Ron is unable to manage his property and affairs. It is feared that other members of the family may be taking advantage of Ron’s lack of capacity, and recently a cheque was drawn for £80,000 which Ron apparently signed but has no recollection of. Ron’s property and affairs therefore require urgent protection, and the applicant seeks the Court of Protection to appoint a professional deputy, Miss Rheian Davies, Solicitor, to act as his deputy in this respect. Ron is unable to protect his financial interests himself, and no one else has the legal authority to do so. Therefore it is necessary to urgently appoint a professional deputy.”
The eldest child from Ron’s first marriage objected saying,
“I oppose the application. My wife and I have managed my father’s financial affairs in the UK for over 20 years. This has often involved him lending money. He has never managed his finances well. We have a better understanding of his finances than he ever has had. The application for deputyship has been made because my father’s youngest child Z wishes to gain knowledge and control of my father’s finances. Z has no knowledge of my father’s affairs. Z has struggled with drug addiction and managing her own life in the past. I have been concerned that Z is exerting control over my father and using threats of self harm and cutting contact between my father and her child to influence his behaviour and extract money from him. This has led to my father reducing contact with his wider family. This has also led to my father giving Z money despite telling people he did not want to do so. There have been concerns expressed by social services about Z’s relationship with my father. I propose the appointment of Sarah as deputy. I seek further time to file witness evidence.”
There was a hearing which the children from the first marriage did not know about due to a problem with the paperless scanning system at their solicitor’s office. They therefore did not attend the hearing or submit representations. The professional deputy, Rheian Davies, who had acted for Z in the application was appointed for a year. Once the children from the first marriage found out about this they applied for this Order to be set aside urgently.
The deputy’s position was that “Ron’s affairs are complex and, putting at its lowest, family members do not appear to have been acting in his best interests. This is either through incapability or worse”.
Z had “grave concerns with any of the respondents or Mr Allan Pratt (Ron’s accountant) being appointed as deputy. The important points are as follows:
“Since her appointment the deputy has taken steps to improve Ron’s personal welfare including arranging home care provision. She has also begun her task, pursuant to the court order, of understanding Ron’s financial affairs and reporting to the court. The deputy has provided an interim report of 27 November 2015.
The report identifies substantial amounts of Ron’s money which are not accounted for. The deputy has been able to study the recent history of an E Ltd. bank account with Lloyds Bank; she has been able to cross-reference entries to cheques; she has not yet been able to do this with the T Ltd. account, which is held at the NatWest as the respondents and Allan Pratt have not been fully co-operating. She has not been able to do this for any other bank accounts or other financial accounts for the same reason. It is still not known where Ron’s assets and bank accounts are held as those previously in charge of his affairs, including Allan Pratt, have refused to provide the deputy with details.
The deputy’s analysis shows that almost ½ million pounds pas through the Lloyds account over the last 3 years (this is the only period the deputy has looked at so far). In that period £44,000 odd has been taken out in cash; cheques of £194,000 odd have been made to Sarah or her daughter; £86,000 odd has been used to pay off an MBNA credit in Sarah’s name.
The history of the account is completely inconsistent with Ron’s current needs. The respondents accept that. The deputy had been asking for an explanation, and a reply of sorts has been recently provided. The respondents assert that all these funds were used to pay off loans made to Ron back in 2006. No cogent evidence has been provided.
Allan Pratt has not assisted the deputy. No comprehensive accounts have been provided and no explanation has been given about the 2015 company transfer. Mr Pratt has told the deputy that he has no explanation on the receipts into E Ltd. and has compiled accounts filed to Companies House from the banks statements alone, apparently without knowledge of significant amounts of expenditure on behalf of E Ltd. This is despite the fact that he is the Company Secretary of E Ltd. as well as its accountant. A significant amount of expenditure has been by cheque and Mr Pratt compiled these accounts without the cheque book.
The deputy is now even more concerned about how Ron’s affairs have been managed than she was on 21 September 2015. Her initial investigations have uncovered the removal of substantial funds from Ron without a proper explanation”.
Z also said that there had been no developments from the original hearing that would warrant setting aside the deputy appointment. She argued that a replacement professional deputy would lead to additional cost and that there had been no criticism of the deputy’s conduct or abilities.
The children from the first marriage asked the Court to appoint one of their wives as deputy, or the accountant. However, if that was not appropriate they would want a local panel deputy. Senior Judge Lush identified the “clear family division and tension”. He considered the points made by the children of the first marriage about bias:
“The test for determining apparent bias is whether the fair-minded and informed observer, having considered the facts, would consider that there was a real possibility that the tribunal was biased (Porter v Magill [2002] 2 AC 357 at [103]).
The appearance of bias of a deputy should be avoided at all costs (EG v RS [2010] EWCOP 3073).
The respondents appreciate that Ron’s finances have been complex. He has earned, borrowed and spent large amounts of money. While as a family and as individuals the respondents had initially wanted to maintain the privacy of their and Ron’s financial affairs, they now recognise their lack of information was not helpful.
Part of the reason is clearly the context in which Ms Davies came to be appointed. She was acting for the applicant, with whom they had a difficult relationship, about whom they have serious concerns in relation to the treatment of their father and who, in her application, made a number of serious allegations about them. Ms Davies made the same allegations about the respondents on her behalf. She painted a particularly positive picture of the applicant and her credibility and contrasted this with some of the respondents. She commented, “We see none of the same transparency from Sarah and Sven who have intermeddled with Ron’s estate and not even managed to oversee a simple residential conveyance on his behalf.” Concerns raised about the applicant with social services were said by Ms Davies to be “revenge attacks”.
In all the circumstances, a fair minded and informed observer would conclude there was a real possibility of bias in this case, where there are contested allegations of serious financial misconduct by both the applicant and the respondents and where Ms Davies had previously firmly taken the side of, and acted on behalf of, the applicant.
The respondents have provided further information to the court in the form of more detailed statements. Further information has been provided to Ms Davies. It is unfortunate that Ms Davies’s report was produced without it”.
Senior Judge Lush did not think that the balance sheet approach to making a decision would work on this occasion. He considered that the wife of one of the children of the first marriage was unsuitable to be appointed because, “one of the deputy’s functions is to investigate prior dealings with Ron’s property and financial affairs and a deputy cannot be appointed to investigate his or her own dealings”.
It was not appropriate for Mr Pratt, the accountant, to be appointed nor for Z, the daughter from the second marriage to be appointed because, “there are questions to be answered about the amount of money she has received from him and the extent to which she may have exerted undue influence over him when obtaining those funds”.
Essentially the choice was between the interim deputy, who had acted for Z in the application, and a panel deputy. Senior Judge Lush felt that a panel deputy was most appropriate for these reasons;
“First, given the history of these proceedings, it is more likely that the respondents will co-operate with a panel deputy. However, with fairness to them, their counsel, Catherine O’Donnell, gave a verbal undertaking at the hearing that they would be willing to co-operate with whoever was appointed as Ron’s deputy, even Rheian Davies. Secondly, I accept the broad thrust of Miss O’Donnell’s argument about possible bias”.
He referred to the case of EG v RS, JS and BEN PCT [2010] EWCOP 3073 COPLR Con Vol 350, and quoted Judge Cardinal’s view that this was “a cautionary tale for all those who put themselves forward as professional deputies when too closely associated with one party in a dispute before the Court of Protection,” and at paragraph [27] he went on to state that: “It is just not possible to act as an honest broker on one hand and firmly on the side of one party alone on the other”.
Senior Judge Lush also had other reasons for wanting to appoint a panel deputy:
“Because of the nature of Rheian Davies’s practice and its particular areas of expertise (for which, I must add, she received the Legal Aid Lawyer of the Year Award 2011), I believe it would be preferable for a panel deputy to be appointed from one of the more traditional private client firms, which is able to provide a more nuanced set of skills.
On its website DH Law claims that its areas of proficiency are mental health, community care, family law, Court of Protection, conveyancing, employment law, professional regulation, housing, personal injury, civil litigation, and will writing.
Ron’s finances are complicated and involve both corporate and international elements. In my judgment, the deputy should be a member of a firm which has experience of investigating white collar crime and bringing proceedings for the recovery of misappropriated funds, and which has access in-house to international and corporate expertise, if necessary”.
Senior Judge Lush allowed Rheian Davies to continue to act while another deputy was identified.
January 2016
RP, Re [2016] EWCOP 1 (05 January 2016)
