COURT OF PROTECTION – Geographical closeness is ‘magnetic factor’ for property deputyship

From the STEP weekly digest

COURT OF PROTECTION – Geographical closeness is ‘magnetic factor’ for property deputyship

Two brothers have been appointed deputies for their 93-year-old father’s property affairs on the basis that he lives much nearer to them than to his third son, who was objecting to their deputyship application. The case, DG & Others v Peter (2014 EWCOP 31), embodies the familiar situation of siblings quarrelling over who should look after the finances of an aged parent with dementia.

BAILII

Clicking through to the Bailii site gives another judgment from Master Denzil Lush, a keen observer of humanity’s failings : and he is given ample opportunity to examine them.

In this case, there was nothing to differentiate between the three brothers in any way – they all had skills, willingness and ability to be Deputies.  There were only two factors that separated them that were “magnetic” – geographical proximity and attitude.

      “28.The old authorities on mental capacity law showed a preference to appoint “persons whose residence admits of frequent visits to the patient and inspection of his affairs.” David and Barry live in Surrey. Each of them visits DG two or three times a week. Their wives visit him separately, and their children go and see him regularly, too. By contrast, Peter lives in Yorkshire and gets to see his father about three or four times a year.
      29.Andrea Watts summarised the position rather well in her skeleton argument when she said:

“The reality of the situation is that the applicants are in a position to assist with day to day care and decision making, and the respondent is not. It is not a criticism of him, but the geographical distance simply makes him a less suitable choice of deputy than the applicants.”

      30.I agree. Their geographical location gives David and Barry the edge.

What was also telling was the attitude.  How carefully one must have to speak in front Mr Master Lush:

      31.There is a marked difference between David and Barry’s attitude and approach and Peter’s towards DG’s carers and the management at the residential care home and the statutory authorities responsible for his care. At the hearing on 19 August, David admitted:

“Yes, we agree that [the residential care home] is not perfect, but if anything is wrong I go and talk to the person who is going to get it fixed. At any time I have an issue, I talk to them. They know me and my wife. I have no qualms about the management. It’s not The Ritz. I wouldn’t expect it to be, but the people – the carers – go out of their way to look after my father. Not just the carers but the gardener, the cleaner, the handyman. It’s a very nice environment.”

      32. Peter, on the other hand, said:

“I’ve complained about cleanliness. I’ve complained about security.”

“I complained to the chief executive of Anchor Homes.”

“I have made Freedom of Information Act requests.”

“My parents were put in [the residential care home] against their will: deprived of their liberty by my brothers.”

“I suggested that they feed my mother through a drinking vessel. The care home refused to do that on the grounds that it was undignified.”

“I sent 50 to 100 emails to Social Services badgering them to get Mum and Dad home.”

“Social Services have not followed through any of their promises.”

“The care home won’t talk to me, either. I don’t understand why they won’t talk to me. They won’t give me any information at all.”

“David and Barry don’t have it in them to challenge everybody. [The residential care home] needs challenging. Somebody needs to challenge them. If I were in charge of my father’s finances, I would.”

“In my desire to get deputyship the main reason is to look after the accounts like David, but I would be a lot harder with [the residential care home] in view of their laissez faire attitude.”

    33. This is essentially a matter of attitude and approach or, as Miss Watts described it, ‘tone’. Whereas David and Barry are able to interact successfully with the carers and statutory agencies which have an interest in their father’s welfare, Peter’s relationship with almost everyone is fraught. Although occasionally his complaints have resulted in a successful outcome for his parents, his victories have been pyrrhic, and overall his approach has been counter-productive. He is a compulsive complainer who has unrealistic expectations and a tendency to become bogged down by minutiae. His brothers are not appeasing an enemy, but simply making appropriate responses and avoiding unnecessary conflict with those responsible for their father’s everyday care.
    Block quotes are from the STEP summary or directly from the case itself.  The case is published for public consumption and is not confidential information – although the identities of the individuals are (as is common with the Court of Protection.
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