Mental Capacity Case


DJ Geddes

In Re OT [2020] EWCOP 25, the court had to decide who to appoint as deputy to manage the property and affairs of an 81 year old woman, OT.  The rival contenders were:

  1. KKL, a trust corporation working closely with (both in terms of being the subsidiary of and working from the same office with) a charity called JNF Charitable Trust ("JNF UK").  OT had, when capacitous, approached KKL and chose them over many years to write and rewrite her Will.
  2. Ms Lynsey Harrison, a partner in Clarion Solicitors, a professional deputy approached by OT's social worker SAH under an approved scheme used by Leeds City Council for referrals required on behalf of vulnerable people for legal advice or deputyship.
Ms Harrison objected to KKL being appointed on three main bases:

The first is its lack of independence from JNF UK and the potential for a conflict of interest to arise between OT's interests and the interests of JNF UK as the main and residuary beneficiary of OT's latest will.  The second is KKL's lack of experience as a deputy and the third is KKL's geographical distance and their apparent conflict with others with whom the deputy would need to work in OT's best interests pursuant to section 4(7) of the Act.

KKL objected to Ms Harrison being appointed in part because of their assertion that they should be higher in the ranking order, and in part because of an asserted conflict of interest associated with her ability to charge a fee for her work as a professional deputy and to pay solicitors costs to her own firm for legal services.  DJ Geddes made observations of perhaps wider import to other situations where a local authority approaches a professional deputy in similar circumstances, rejecting the following specific allegations:

(a) That the arrangement under which Leeds City Council refers vulnerable people to a small pool of approved solicitors is somehow "cosy" or improper.  There is nothing wrong with such a system in my judgment and no evidence to substantiate the hint that it is somehow against OT's interests.

(b) That the inclusion within the application and draft order of the words "to authorise the deputy to pay Clarion Solicitors Limited the costs of this application and if this amount sought exceeds the fixed costs allowed the deputy is authorised to agree their costs and pay them from the funds belonging to OT.  In default of agreement or if the deputy or solicitor would prefer the costs to be assessed and to be carried out on the standard basis" is a "cosy arrangement regarding costs that is buried in the small print in her application".  Appreciating some licence for advocacy given that this is taken from Counsel's skeleton argument this is nevertheless (literally) factually wrong (this element of the order is printed in exactly the same uppercase print as the other orders sought in the application) and reflects standard wording within the templates produced by the Court of Protection.  It is perhaps right to say, however, that where the deputy is a partner in the solicitors' firm whose fees stand to be agreed it might be wise for them to agree either to stay within the fixed regime or to have an assessment or, if appropriate, for the court to restrict the licence to agree costs in a similar way.

(c) That it is somehow surprising that Ms Harrison is not being funded by Leeds City Council to make this application or to oppose the application of KKL.  This is not surprising at all.  It certainly does not raise "serious questions" as asserted by Mr Arkush in his skeleton argument.  The role of Leeds Social Care was limited to making the referral through Lawdesk.  They are not the client of Ms Harrison, nor is OT.  There is a risk to Clarion Solicitors of taking such referrals in that if their application were rejected they might be left to bear their own costs of bringing the application which they do so purportedly in OT's interests.  Of course, in this limited sense they have an interest in either the success of the application or at least in not being criticised for bringing the application to the point of disapplication of the general rule about costs contained in rule 19.2 of the Court of Protection Rules 2017 namely that "Where the proceedings concern P's property and affairs the general rule is that the costs of the proceedings… shall be paid by P or charged to P's estate".

As regards where KKL sat in the pecking order, DJ Geddes noted that the fact that she had approached them and trusted them to write and rewrite,

  1. [...] shows both that she trusted the company to act in her interests and is likely evidence that she identified with JNF UK's aims and objectives.  This is relevant to her values, and to her wishes for the purpose of section 4 of the Act but the evidence simply does not allow me to accept the submission that they should be treated - in particular where there is clearly potential for a conflict of interest as I have found - as if they are family or close friends of OT.
  2. In my judgment they may well fit into the description of professional adviser.  The difficulty with preferring KKL to Ms Harrison on this basis is their lack of independence from JNF UK.  A solicitor or accountant who knows their client well from years of managing their personal affairs is clearly an appropriate deputy but would be expected to maintain independence.  It would be unthinkable and a clear breach of their code of conduct to facilitate the writing of a Will or to act as deputy or executor of a Will under which they stood to gain.
Ultimately, having conducted a detailed examination of the factors for and against the appointment of KKL, DJ Geddes found that;
  1. In my judgement the magnetic features have to be the need to investigate whether KKL's conduct of OT's affairs to date has been in breach of the Fundraisers Code and the clear potential for a future conflict as a result of JNF UK being the sole beneficiary of OT's estate.  Nothing in Mr Arkush's submissions addressed those points to my satisfaction.  The undertaking offered was certainly not enough to reassure me that OT's interests could be adequately protected if KKL were appointed as OT's deputy.  On the other hand by requiring an assessment of Ms Harrison's costs if they exceed the fixed rate regime I can mitigate or even eliminate any concern arising from her relations with Clarion solicitors in respect of this application.