Judge: Senior Judge Lush
Citation:  EWCOP 58
The proceedings concerned an elderly lady, Doreen, who suffered from dementia. She had been residing in a care home since May 2013. Her daughter lived in the United States and applied to be appointed as her mother’s deputy. Doreen’s two brothers and a niece had raised objections to the appointment of the daughter on the basis that the court should not appoint anyone as deputy who lived outside the jurisdiction of the court.
Doreen had a modest estate, which amounted to £12,000 held in a current account and cash ISA. She had indicated through the clinical manager of the care home that she wished her daughter to act as her deputy.
The daughter had a good working relationship with those that cared for Doreen and funded her care and she remained fully involved in her mother’s care, even though she lived in the United States.
Upon an application for reconsideration, Senior Judge Lush confirmed Judge Bellamy’s decision to dismiss the objections and appoint Doreen’s daughter as her deputy. Importantly, SJ Lush held (at paragraph 50) that:
“In my judgment, the fact that someone lives outside the jurisdiction should not be an impediment to their appointment as a deputy if, in all other respects, they are the most suitable candidate to be appointed and their appointment is in P’s best interests.”
This case is the first post-MCA case that has considered the appointment of deputies who are resident outside the jurisdiction. It marks a departure from the previous case-law and commonly held view that a person outside the jurisdiction should not be appointed a deputy. It recognises that there have been considerable technological and other advances over the last century or so that make communication and travel faster, cheaper and easier and mean that distance alone is no longer the obstacle to appointment it once was.
Senior Judge Lush referred in his judgment to the decision of Justice Cunningham of the Ontario Court of Justice (General Division) (Quinn v O’Neill (1992) 47 ETR 18)), which had dealt with similar issues. In that case Justice Cunningham had refused to follow an earlier case decided in 1916 because in his view “strict adherence to earlier cases, which were decided in another era, when communication and travel were difficult, overlooked the realities of the 1990’s”.
Senior Judge Lush agreed, adding (at paragraph 47) that:
‘Moreover in the two decades since Justice Cunningham delivered his judgment there have been further technological advances in communications, such as online banking, digital reporting, mobile phone, email and Skype, and cheaper air travel as a result of a proliferation of budget airlines.”
Senior Judge Lush also noted that the insurance company that provided the security bond had no problem in bonding deputies who are habitually resident overseas.
Going forward, the fact that an applicant is out of the jurisdiction will be one of a number of factors to be considered by a judge when deciding on the applicants suitability to be appointed P’s deputy and will not of itself be determinative.