H, Re [2015] EWCOP 52 (05 August 2015)

Absolutely fascinating and relevant for parents of autistic (and other children with mental disabilities), particularly those whose impairments are severe.  Enabling the appointment of successive deputies is a very tricky issue, both legally, practically and also from the point of view that the disabled person should not be considered as a minor child requiring a guardian, nor as a chattel or other asset to be disposed of under a testamentary disposition.

I would so like to meet Master Lush.  He seems to have addressed the issues with tact, discretion and lucidity.  His economy of style is, as always, pleasing.

 

Decision

Although the disadvantages slightly outnumber the advantages, I propose to allow the appointment of successive deputies in this case.

The factor of magnetic importance is that the appointment of successive deputies will give H’s parents peace of mind. It means that they can sleep soundly at night, knowing that they have put their affairs in order. For the last twenty-six years, their lives, their needs and their rights have been completely subordinated to H’s and, when say they that the appointment of successive deputies would be in her best interests, I believe them. Moreover, they still insist that it would be in her best interests, even though they are now fully aware of the problems associated with an appointment of this kind.

In paragraph 8.43 of its report on Mental Incapacity, the Law Commission noted that “many elderly carers of young disabled persons experience great anxiety about what will become of the younger person when they, the carers, have gone.” If an order appointing successive deputies will relieve H’s parents of that anguish, then these proceedings will have been worthwhile.

Putting their affairs in order sounds like making a will. In paragraph 6.21 of its Consultation Paper No 128, the Law Commission observed that some parents attempt to provide a continuing framework of care and supervision for their mentally incapacitated child by means of a testamentary appointment, and went on to say: “We have proposed that the judicial authority have power to appoint successive managers, and think it better in principle to deal with this situation in that way.” Although the Code of Practice contemplates a scenario in which the succession is likely to take place imminently or in the reasonably foreseeable future, it is clear that the circumstances of people like H and her parents were one of the prime considerations that prompted Parliament to enact section 19(5) of the MCA in the first place.

It is suggested that, by appointing them now, the successor deputies will feel a stronger sense of responsibility and commitment towards H. I believe this, too. Their role is not unlike that of godparents. They are individuals who have been selected by the parents to take an interest in their daughter’s upbringing and development and to take care of her when her they are no longer around. English ecclesiastical law anticipates that godparents “shall be persons who will faithfully fulfil their responsibilities” (Canon B23.2). I hope that H’s successor deputies will faithfully fulfil their responsibilities when the time comes for them to take over from her parents, whenever that may be.

via H, Re [2015] EWCOP 52 (05 August 2015).

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