Re Z

Summary

Although given a Chancery Division neutral citation, this was a procedural application in existing Court of Protection proceedings concerning the capacity of an elderly man (Z) to manage his property and affairs and the validity of a lasting power of attorney (LPA) apparently granted by Z.

Z was a successful business man who carried out some of his ventures jointly with his brothers (X and Y). X was still alive but Y was deceased. X was a party to the proceedings. The other parties to the main proceedings were Z's wife, CD, and two of their four children, EF and GH. CD and X each had different views on whether Z had capacity to manage his property and affairs and whether a valid LPA had been granted.

The applicant, OO was Y's son and Z's nephew. OO asserted that over the years he has spent an enormous amount of time with Z and that they had a very close relationship that was "akin to a father-son relationship". He also alleged that Z had promised to pay him a sum of money arising from business dealings with his late father, Y. He supported X's stance regarding the issues of Z's capacity and validity of the LPA. OO was concerned that CD was trying to take control of Z's estate for herself and her children to prevent Z from fulfilling the promise which he had made concerning payment of the sum of money.

Although the judge found that OO had relevant evidence to give, he also considered that OO had a commercial interest of his own and that it would not be helpful to give that commercial interest any prominence in the main proceedings. The judge decided that it would not be appropriate to join OO as a party to the proceedings for five reasons:

1. It was of the utmost importance for the proceedings to be resolved speedily. Anything that had the potential to delay or prolong the resolution of proceedings had to be avoided;
2. OO had produced sufficient material to support a serious argument that he had a "sufficient interest" in the "best interests" aspects of the proceedings as he was a family member with some insight into Z's character and to whom Z may have expressed some intentions. OO had relevant evidence to give on those matters and that his evidence should be admitted into the proceedings so that it was before the court to be tested. However, OO did not need to be a party for that purpose;
3. OO had a separate commercial interest and it would not be helpful to give that commercial interest any prominence in the proceedings;
4. OO was adopting the same position as X who was already a party to the proceedings;
5. Standing back and weighing the pros and cons of joining OO as a party, the need for a just and proportionate determination of the issues meant that it was not desirable to permit it.

The outcome of this application is somewhat surprising.  It may reflect the cultural differences between those brought up in the Chancery Division and those brought up on welfare cases in the Court of Protection. Rarely (in our experience) does the Court of Protection refuse to join a family member as a party where they explicitly wish to be joined. This is all the more so where it is acknowledged by the court that the family member has close relationship with P so as to have a "sufficient interest" in P's best interests, and that they have has relevant evidence to give on P's circumstances and wishes and feelings which needs to be tested by the court.

The court's concern about not giving prominence to OO's financial interests (as the proceedings are about Z's best interests) is understandable. However, the Court of Protection regularly deals with contested matters of best interests (both financial and welfare) where it may be necessary to delineate P's best interests from the separate interests of any family members. This is routine. We would expect that any judge would be astute enough to ensure to that the proceedings focused on Z's best interests rather than OO's commercial interests.

The court's desire to avoid further delay and expense by joining another party is also understandable. However, the court has available to it a plethora of case management tools including limiting the amount of evidence that a party is permitted to file and the amount of time that is allocated to each party at any hearing. It is difficult to immediately identify from the judgment any insurmountable difficulties that could not have been overcome with robust case management directions to ensure that proceedings were dealt with fairly and proportionately.

Notwithstanding the outcome of this case, we suggest that it would ordinarily be very rare for the Court of Protection to refuse an application by a family member to be joined as a party to the proceedings where it is clear that they have a "sufficient interest" in P's best interests and have relevant evidence to give on P's circumstances including P's wishes and feelings.