Will Successive Deputies “faithfully fulfil their responsibilities”?
Will this be the case when appointing successive Deputies? Hopefully, says the Court of Protection.
It is hoped that when the time comes for successive Deputies to take over they will “faithfully fulfil their responses”, likening the position to that of godparents and English Ecclesiastical Law (Canon B23.2).
This unusual case, specific to its facts, involved a young lady, H who has autism. Her birth was a month premature following placental abruption and an emergency caesarean section. She was stillborn and didn’t start breathing until 15 minutes after delivery. She then spent the first 7 weeks of her life in a special baby care unit.
H is an only child who resides with her parents. She was formally diagnosed as autistic when she was 5 years old and has cognitive functioning and adaptive skills in the extremely low range. It is understood that she has intelligible speech and very limited communication skills.
On 6th August 2014, her parents applied to be appointed jointly and severally as her Deputies for Property & Affairs and also Personal Welfare. They also applied for the appointment of 3 successive Deputies – A, B and C in the event that they could no longer act themselves. All of the successive Deputies are female and know H very well.
A and B are H’s maternal aunts and are also twins. They are 10 years younger than H’s mum. C became acquainted with H at college and is now a paid employee, to assist H one day a week.
As the parents were seeking a personal Welfare Order, in addition to the application for Property & Affairs they were required to apply for permission. Based on that application Senior Judge Lush made an Order on the papers on 6th January 2015 granting the parents’ permission to make the personal welfare application but refusing to let them apply for successive appointment of Deputies.
The reasoning for this refusal of successive appointment was;
“it seems inappropriate to make provision for young adults so far in advance in respect of events that may not occur for many decades, and it would be in H’s best interests for the Court to defer appointing any successive Deputies to make decisions on her behalf until after the death of one her parents”.
Previously it was rarely heard of for Deputies to be appointed on a joint and several basis previously. It is therefore safe to say that successive Deputies have barely been mooted and in fact may not have even been known of, as a possibility. Senior Judge Lush stated in his judgement;
“another reason why these applications scarce is neither the Court of Protection or the Office of the Public Guardian has ever actively promoted successive appointments for reasons that will become obvious… in this judgement”.
The ability to appoint successive Deputies is enshrined in statute at section 19 (5) of the Mental Capacity Act 2005 (MCA) which states that;
“When appointing a Deputy or Deputies, the Court may at the same time appoint one or more persons to succeed the existing Deputy or those Deputies –
(a) in such circumstances or, on the happening of such events, as may be specified by the Court;
(b) for such period as may be so specified”.
However, in practice the Court vary rarely receives applications of this kind. It is understood that section 16(4) trumps section 19(5) because it is a principle to which the Court must have regard when deciding whether it is in P’s best interests to appoint a Deputy. Section 16(4) generally states that when deciding whether it is in P’s best interests to appoint a Deputy, a decision by the Court is to be preferred to the appointment of the Deputy to make a decision and that the powers of the Deputy should be as limited in scope and duration as is reasonably practical in the circumstances. It is understood that the opportunity of appointing successive Deputies is a discretion conferred upon the Court, authority being given by section 19(5) once the Court has decided to appoint a Deputy.
There were also concerns in relation to whether Section 19(5) is compliant with International Human Rights law. However, it is understood that the requirement in Article 12.4 of the United Nations Convention on Rights of Persons with Disabilities (UNCRPD) for “regular review by a competent, independent and impartial authority” is met by the Public Guardian’s functions in supervising Deputies (to include receiving reports and directing visits by a Court appointed visitor).
In allowing the matter to be reconsidered, Senior Judge Lush asked for the Public Guardian to prepare a report considering the appointment of successive Deputies, not just in the case of Re H but generally. Whilst the report was obtained, the parents were appointed on an interim basis as Deputies for both Property & Affairs and also personal Welfare.
To assist the Public Guardian, he asked one of the Court of Protection Special Visitors to visit H. The Court of Protection visitor was a Consultant Psychiatrist specialising in Learning Disabilities and was an Associate Medical Lead in Learning Disabilities and Special Adults Services for an NHS Trust. He commented that “one of the other defining features of people with autism is that they have impaired emotional reciprocity when interacting with others”.
He also went on to state “as such, for people with autism of all abilities – though a defining characteristic of autism is impaired ability to develop and maintain peer relationships – having a familiar person to interact with can be expected to be less stressful for the person with autism and, so, more successful for both parties”.
He concluded that considerations ought to be different when appointing a personal Welfare Deputy as to appointing a Property & Affairs Deputy. To quote his comments;
“I would argue that a Deputy or attorney managing the property and finances of a person does not need a high level of personal knowledge of a person to act for them, given the universality of many of the issues regarding finances.
I would argue that to be a Deputy for a person’s health and welfare requires a much greater knowledge of the person’s life, emotional state, stressors, and possible desires than being a Deputy for finances. As such, I would support the idea of family members who know a person well becoming Deputies for health and welfare.
In general, if it were anticipated that a successor Deputy for health and welfare was likely to be needed in the next few years, then it would appear to me to be in a person’s best interests to appoint a successor at the same time as a Deputy if there was a person who was known to have a good relationship with the subject and a good understanding of him or her who was willing to be successor.”
In considering the Special Visitor’s comments the Public Guardian also approached a Senior Policy Representative of the Building Societies Association (BSA) to take soundings as to how banks and building societies might react to the appointment of successive Deputies. The outcome of this was that they would be likely to treat a successive Deputy in the same way as a replacement attorney though they would need clarity from the Court as to when they would know it was the right time for the successor Deputy to start acting and for the succeeded Deputy to stop. They anticipate some problems.
Overall, the Public Guardian considered that in general, successive appointments would present too many “what if” conundrums though in the case of Re H, did recognise the Court visitor’s comment and understood that in the case of H “there is greater difficulty in forming new relationships, and also that the appointment of a successive deputy may provide an incentive for them to maintain contact in the future.”
When considering the report of the Court visitor and also the input of the Public Guardian and BSA, Senior Judge Lush also looked at the MCA Code of Practice specifically the discussions surrounding successive appointments at paragraph 8.4. It is noted that the Code of Practice contemplates a scenario on which the succession would take place imminently or in the foreseeable future rather than in circumstances for people like H, when the successive appointment may not take place for perhaps the several decades. It is acknowledged in this judgement that it was clear that the prime consideration for prompting parliament to enact Section 19(5) in the first place was to protect those like H.
The scenario detailed at 8.4 of the MCA Code of Practice for appointing a successive Deputy is;
Neil, a man with down syndrome inherits a lot of money. His parents were already retired when the Court appointed them as joint Deputies to manage Neil’s Property & Affairs. They are worried about what will happen to Neil when they cannot carry out their duties as Deputies any more. The Court agrees to appoint other relatives as successor Deputies. They will then be able to take over as Deputies after the parents’ death or if his parents are no longer able to carry out the Deputies’ role.
On putting together his decision, Senior Judge Lush looked to the balance sheet approach, as seen before in recent case law. The balance sheet itself is interesting and summarises the position as follows;
a) This application is based on the false premise that, on the death of H’s parents, the Court of Protection would appoint someone from outside H’s circle of support as her deputy. Her parents were particularly worried that Social Services would muscle in. Although it is possible that at the material time there could be no suitable person who is willing and able to act as H’s deputy, it is unlikely that the court would contemplate appointing anyone from outside her family or immediate community.
b) The persons who constitute H’s support network could change at any time after the appointment has been made, even fairly soon. I have a good example to illustrate this point. John Friel last appeared before me on 4 July 2013 in an identical application concerning AG, a young man with cerebral palsy, who was born in 1995. AG’s parents, who are high net worth individuals, proposed that, after both of them had died or become incapacitated, two financial advisers, who are family friends, would step in and act as his deputies for property and affairs, and an orthopaedic nurse practitioner, who is also a family friend, would become his deputy for personal welfare. After I had explained to Mr Friel and AG’s mother the impracticalities and imponderables associated with appointments of this kind, I asked Mr Friel to draft the order he required containing the successive appointment, but I heard nothing further from him. I asked him at the hearing on 14 July 2015 why never came back in AG’s case, and he said that he understood that AG’s parents no longer regarded one of the proposed successor deputies as suitable, and that they had decided not to proceed with the application, after all.
c) There are practical difficulties arising from the wording of the successive appointment. I am by no means convinced that Mr Friel’s proposed wording, set out in paragraph 24 above, is fool proof. Nevertheless, as he has spent the last two years perfecting it and as it reflects the wishes of his clients, I propose to incorporate it in the order, subject to amendments whereby any death certificate or evidence of incapacity is produced to the Public Guardian rather than to the court, as recommended by the Public Guardian in paragraph 35.
d) There is currently no infrastructure in the MCA, the Court of Protection Rules or any practice direction governing the procedure to be followed on a successive appointment. It is not entirely clear what happens. By contrast, there are reasonably clear provisions in section 13 of the MCA regarding the circumstances in which a replacement attorney can replace an original attorney and there is a prescribed form on which an attorney can disclaim his appointment. There is no equivalent form, however, enabling a deputy to resign. What usually happens is that a deputy who wishes to resign or retire makes an application to the court for a new deputy to be appointed in his place.
e) The successor deputies may encounter difficulties in getting banks, building societies and other financial institutions to accept the order for the reasons suggested by the senior policy adviser at the BSA, whom the Public Guardian consulted when preparing the section 49 report
f) There will be a problem over the amount of security the successor deputies are required to obtain and maintain, especially if H’s parents die leaving their combined estates to her absolutely, rather than under a trust.
g) A successive appointment is incompatible with the requirement in international human rights law that any measures affecting a person’s legal capacity should “apply for the shortest time possible and [be] subject to regular review.” I have already addressed this issue in paragraph 6 above.
h) The relevant literature on successive appointments (for example, the Law Commission’s report on Mental Incapacity and the Mental Capacity Act Code of Practice) seems to envisage a scenario in which the succession is likely to take place imminently or in the reasonably foreseeable future. These considerations do not apply in this case.
i) As the Public Guardian put it, maybe there are too many ‘what if?’ conundrums.
Some of the advantages of appointing successive deputies are as follows:
a) There will be continuity of care and decision-making.
b) There will be continued contact with persons whom H knows.
c) The proposed successive deputies are people who can communicate with H and understand her. Her communication is highly idiosyncratic and it takes someone new at least a year to be able to understand her.
d) By appointing them now, the successive deputies will feel a stronger sense of responsibility and commitment towards H.
e) It would reduce the amount of paperwork and bureaucracy, which can be onerous for someone who is not a professional person, as well as expensive.
f) It will give her parents peace of mind, which will filter through to H.
g) No harm will be done to H by appointing successive deputies”.
The disadvantages outnumbered the advantages in this approach. However, Senior Judge Lush decided on the specific facts and circumstances in this case that successive Deputies should be appointed.
He commented that the factor of “magnetic importance” is that the appointment of successive Deputies would give H’s parents piece of mind. “It means that they can sleep soundly at night, knowing that they have put their affairs in order.”
Based on the evidence put forward by the applicants being the parents it was also suggested that by appointing the successive Deputies now, they would feel a stronger sense of responsibility and commitment towards H. Senior Judge Lush commented that he believed this too. He drew the comparison to their role, not unlike that of godparents being those who “shall be persons who faithfully fulfil their responsibilities” (Canon B23.2).
This is a very unusual but interesting case especially the reasoning as to why the decision was made by Senior Judge Lush to appoint Successive Deputies. It is also interesting, as the Court of Protection have appeared reluctant to appoint Welfare Deputies in the past let alone Successive ones. I will be intrigued to see how many applications (and appointments!) of Successive Deputies will be made going forward.