Judge: Hewey J.
Citation:  EWHC 347 (Ch)
Summary: This case concerned an application for removal of the a property and affairs deputy appointed in 2010 on behalf of a Mrs Rodman, an elderly lady suffering from Alzheimer’s disease.
Mrs Rodman had previously fallen under the aegis of the Court of Protection as she had been resident in the England and Wales, and had substantial assets here. A property and affairs deputy, a Mr Long, was appointed. By order of the Court of Protection, Mrs Rodman was then moved to the United States; those concerned understood at the time that it would be to New York. That order also recorded an undertaking by her four daughters that they would apply to be appointed as her welfare guardians and take appropriate steps to bring about the appointment of a financial guardian or conservator.
In circumstances that would appear to be unclear even to Newey J, Mrs Rodman either did not go to New York or was moved from New York to Nevada after her arrival.
The proposal that Mr Long be replaced was then made by the ‘general guardian’ of her estate, appointed as such under an order by the District Court of Clark County, Nevada. In May 2011, the guardian, Mr Shafer, issued an application in the Court of Protection seeking (inter alia) Mr Long, be replaced as Mrs Rodman’s deputy. In July 2011, Mr Shafer proceedings in the Chancery Division for (a) Mr Long to be replaced as Mr Rodman’s representative and (b) bills which Charles Russell had rendered to Mr Long for work in connection with the deputyship and Mr Rodman’s estate to be assessed pursuant to s.71 Solicitors Act 1974. By September 2011, Mr Shafer was also relying upon matters relating to the assessment of costs incurred by Charles Russell as justification for Mr Long’s removal as deputy.
The application for removal was transferred from the Court of Protection to be heard before Newey J in the Chancery Division of the High Court.
In analysing the relevant legal framework, Newey J noted (at paragraph 17) that the relevant power was that contained in s.16(7) MCA 2005, and that the exercise of the power was a decision covered by s.1(5) MCA 2005. He further noted that, as such, he had to take into account the views of anyone engaged in caring for the person or interested in her welfare which, here, included her four daughters.
Newey J then went on to set out, at some length, why he was “entirely unpersuaded” that that it was in Mrs Rodman’s best interests that Mr Long be removed as deputy. He noted, in particular: (1) Mr Long’s greater expertise as regards the specifically British aspects of the case; (2) the fact that Mr Shafer’s ‘hostile’ approach to date did not inspire confidence that he would be a suitable candidate; (3) that it could prove inconvenient and expensive to have different individuals handling her affairs and Mr Rodman’s estate; (4) that, whilst it would be possible for Mr Long to be replaced as administrator of Mr Rodman’s estate, this would, itself, cause its own problems and additional expense; (5) the costs incurred by Charles Russell were large, but not obviously excessive ; (6) whether or not it was correct that Mr Shafer upon being appointed deputy could require an assessment of costs pursuant to s.71 Solicitors Act 1974, Charles Russell had confirmed that they would take no point upon limitation, such that there was no risk that any right would be lost by the fact that Mr Long was not being replaced as deputy; (7) whilst the daughters had all signed a letter in August of 2011 to the effect that they had lost confidence in Mr Long and wished him to be replaced both as Mrs Rodman’s deputy and personal representative, Newey J noted that the letter lacked any explanation as to why this should be so and that he had not heard evidence from them, such that he did not think that their views helped very much.
Comment: There is a paucity of case-law upon the test to be applied when considering whether to remove a deputy. Indeed, to the best of our knowledge, there have been no reported cases upon the exercise of s.16(7). Whilst Newey J did not engage in a detailed analysis of s.16(7) (and did not refer at all to s.16(8)), it is perhaps of interest to note that he assumed that any decision taken alternative line of argument could be advanced by analogy to the case of Re H  COPLR Con Vol 606, in which HHJ Marshall QC doubted whether the decision under s.19(9) as to the level of security that a deputy is required to post und was one to which s.1(5) applied.7 Had this approach been adopted, we note, Newey J would not need to have to taken into account (even if to dismiss) the views of the daughters.
This case does raise an interesting question as to the power of the Court of Protection to control matters outside the borders of the United Kingdom. As noted by Newey J, the order endorsed by the Court in the earlier best interests proceedings specifically provided that it was in Mrs Rodman’s best interests to be transferred from her current location to an identified location in New York; it would appear from the judgment of Newey J that she may, in fact, never have stepped foot in the door of that placement. It would have been interesting to note what, if any, steps the Court of Protection would have taken had this fact been identified to it in the immediate aftermath of the transfer.