Judge: Senior Judge Lush
Citation:  EWCOP 82
In this case Senior Judge Lush had to consider the issue of who should be P’s deputy, P’s son or the local authority authorised officer.
The local authority authorised officer was the existing deputy and the matter started as the son’s application to be a joint deputy. Unfortunately, the local authority stated that they would not agree to being a joint deputy in any circumstances (as a matter of policy not anything to do with the applicant or P’s situation). That led to the son amending his application so that he should replace the local authority authorised officer and be sole deputy.
The Senior Judge eventually decided that it was in P’s best interests that her son be her sole deputy and the importance of this case does not concern that part of the decision.
One of the grounds put forward by the local authority for opposing the amended application was that the son was in a position of conflict of interest as he proposed that P’s house (where she no longer lived) should be renovated before sale and he (being a builder) should carry out the project. Thus, said the local authority, he stood to gain from his deputyship.
The Senior Judge accepted that but pointed out that potential conflicts of interest were endemic and included local authorities when they were providing care and assessing contributions, see paragraphs 28 – 49 where there is a very useful survey of the law in in both its historical context and the context of Article 12(4) CRPD.
The court’s task was to manage any inevitable conflict of interest and in this case the Senior Judge made detailed provisions as to how the son was to carry out the building work to protect P’s interests.
It is clear that Senior Judge Lush is particularly interested in working through some of the practical implications of Article 12(4) of the UNCRPD and, in particular, what securing against undue influence and conflicts of interest in relation to the exercise of legal capacity actually means. One gets the impression that paragraphs 28-49 of the judgment were intended to have a rather wider (and indeed different) audience than either the local authority or P’s son.