Judge: Senior Judge Lush
Citation:  EWCOP B20
Summary: In the context of a dispute as to who should be appointed BM’s deputy for property and affairs, Senior Judge Lush restated the approach as to who should be appointed as deputy thus:
“46. No one has an automatic right to be appointed as deputy. The Court of Protection has a discretion as to whom it appoints and, as I have said before in other judgments, traditionally the court has preferred to appoint a relative or friend as deputy (if it is satisfied that it is in P’s best interests to do so), rather than appoint a complete stranger.
47. This is because a relative or friend is usually familiar with P’s affairs and aware of their wishes and feelings. Someone with a close personal knowledge of P is also likely to be in a better position to meet the obligation of a deputy to consult with P, and to permit and encourage them to participate, or to improve their ability to participate, as fully as possible in any act or decision affecting them. And, because professionals charge for their services, the appointment of a relative or friend is preferred for reasons of economy.
48. There are, however, cases in which the court wouldn’t contemplate appointing a particular family member or friend as deputy. These include situations where:
(a) the proposed deputy has physically, psychologically, financially or emotionally abused P;
(b) there is a need to investigate dealings with P’s assets prior to the matter being brought to the court’s attention, and the proposed deputy’s conduct is the subject of that investigation;
(c) there is a real conflict of interests;
(d) the proposed deputy has an unsatisfactory track record in managing his or her own financial affairs; and
(e) there is ongoing friction between various family members, which is likely to interfere with the proper administration of P’s affairs.
49. For a completely different set of reasons, which need not concern us here, the court generally prefers to appoint an independent, professional deputy, rather than a family member, in cases where P has been awarded substantial compensation for personal injury or clinical negligence.”
On the facts of the case before him, Senior Judge Lush held that he was left with a straight choice between two candidates, essentially the polarisation being “between two different ‘support networks’ or ‘circles of support’: BM’s church, on the one hand, and his family, friends and neighbours on the other hand” (paragraph 53). He held that
“55… the factor of magnetic importance is not BM’s very deep faith (though I am sure that his faith is, indeed, very deep), but the fact that AG is the candidate proposed by a support network of friends and neighbours, who represent the status quo in terms of being the persons in whom BM had placed trust and confidence immediately before he became incapacitated.”
One of those in the support group was EO, whom BM had appointed to be his sole executrix in his last will dated 23 October 2008. In an entirely ‘CRPD-compliant’ construction of s.4 MCA 2005, Senior Judge Lush noted that:
“58. Although it has been said that there is no hierarchy of factors in the checklist in section 4 of the Mental Capacity Act, I attach weight to EO’s views, because section 4(6)(a) refers ‘in particular’ (my emphasis) to ‘any relevant written statement made by him when he had capacity.’ There are few written statements more relevant than a will and EO is adamant that it would be in BM’s best interests to appoint AG to be his deputy.”