State of play: case summaries

Mr Crowley-Milling was a distinguished physicist who had a role in the development of touch screen technology. He has also worked on CERN, based in Switzerland. Mr Crowley-Milling died in 2012, with a will that made provision for his two nieces, with the residuary of his estate being left to the Royal Society in order to establish a scholarship programme.

The problem was that Mr Crowley-Milling's will referred to the balance of his estate in the United Kingdom. On his death, Mr Crowley-Milling had assets of approximately £900,000 located in Jersey and the Isle of Man.

The case reconsidered construction issues in will drafting. The major consideration was whether Mr Crowley-Milling, in referring to his UK assets, intended to include assets located offshore. On a literal application of constitutional principles, 'United Kingdom' does not include the Channel Islands or the Isle of Man, and therefore the assets would pass to Mr Crowley-Milling's remaining family (and possibly HMRC) under the intestacy provisions.

The Royal Society argued that a wider interpretation should be given to the drafting of the will to include the offshore accounts, while the family maintained that these possessions were not part of the United Kingdom.

Mr Jutsice Nugee took into account all of the relevant circumstances of the case, and considered that the technical definition should not be applied here. Section 21 of the Administration of Justice Act 1982, allowed the court to consider the testator's intention in the presence of ambiguity.

Nugee could not ignore Mr Crowley-Milling's long-term relationship with the Royal Society and his desire to have a fund set up in his honour. His initial will in 1991 left everything to his wife, with the Royal Society receiving his entire estate if she predeceased him; his wife's will mirrored this.

After his wife's death, Mr Crowley-Milling amended his will in 2006, again leaving the residuary of his estate to the Royal Society. He also made a separate Swiss will at this time, leaving an offshore account (holding approximately £500,000) entirely to the Royal Society. When Mr Crowley-Milling amended his will for the last time in 2009, he made a small amendment to make provision for his two nieces, wanting to leave 'something' to his family. On these facts, the ongoing intention to benefit the Royal Society with the vast majority of his estate was clear.

Mr Jutsice Nugee concluded that it was possible for a layman to consider the United Kingdom as including the Channel Islands and the Isle of Man. Mr Crowley-Millings himself had referred to his 'English assets' as including those that were located in Jersey and the Isle of Man, in a note to his solicitor.

It is important to note that this conclusion was fact specific and in different circumstances, the court might not have taken this decision. In this instance, the language was ambiguous against the factual matrix; in particular the testator's long held intentions. 

See Royal Society v Robinsons & Ors [2015] CH D (Nugee J)

 

Re JW

In this case, the court removed a local authority, East Sussex Council (ESCC), as deputy for a 95-year-old lady, A, suffering from dementia.

The application was brought by A’s son, G, who initially wanted to be appointed as joint deputy alongside ESCC, but subsequently changed his application to being appointed as sole deputy. 

The application was set against a background of G struggling to co-operate with ESCC, and ESCC refusing to consider G’s suggestions to enhance the value of A’s estate, and battling to get reimbursement for reasonably incurred expenses. 

A’s estate consisted of her former home worth £350,000, in which two of her children continued to live. 

A also inherited a property when her daughter died intestate. 

The property was in a state of disrepair and worth approximately £150,000. G had suggested to ESCC that the property be repaired and sold to enhance the value of A’s estate. 

G was a builder by trade and estimated that he could complete the renovation at a cost of £35,000, with the result being that the property’s value would be enhanced to £220,000. 

ESCC refused to allow this and thought it would be in A’s best interests for the property to be sold in its current state. Part of the rationale for this was that they did not have the cash to pay for the improvements until the eventual sale of the property (despite 

G offering to fund this). 

Senior Judge Lush considered that the court had the power to remove a deputy under section 16(7) and (8) of the Mental Health Act 2005 (MCA 2005) where it was in the best interests of the protected person. 

He concluded that while A would not benefit directly from the sale of the property, her estate would. 

Senior Judge Lush held that the best interests test was not restricted to the immediate benefit of the protected person, but also considers altruistic wishes that the protected person may have had. This was particularly relevant in these circumstances as A had six children, all of whom were retired or approaching retirement age. 

During the course of the proceedings, ESCC raised concerns that appointing G as A’s deputy would create a conflict of interest scenario. Senior Judge Lush considered previous case law and concluded that conflicts of interest were ‘ubiquitous’ in deputyship cases. 

Commonly family members are considered preferable deputies, and it is the court’s job to safeguard against the risks associated with this, supported by the MCA 2005 and associated practice guides. 

Following section 19 of the MCA 2005, Senior Judge Lush imposed various restrictions on G allowing him to claim for limited reimbursement expenses and capping the level of building expenditure to £35,000. 

He was also required to provide security of £250,000. 

This case serves as a good reminder of balancing the desire to keep the vulnerable person’s care within the family unit with protecting their person’s interests. 

Usually, where a family member is able and willing to act as a deputy, this will be the preferable option, albeit with reasonable safeguards in place to protect the vulnerable person. 

See Re JW [2015] EWCOP 82 (also known as GGW V EAST SUSSEX CC)

 

Re RP

This is a dispute about the appointment of a deputy for property and financial affairs. It involves the consideration of complex financial arrangements relating to the incapacitated person, and the skills needed to deal with them.

R was 83 at the time of the hearing and he was a retired tobacco trader. He had been married three times and had four children from his first marriage, S, C, M and A. He had one child, Z, from his second marriage. R suffered a stroke in 2007 and it was accepted that he lacked capacity. 

In May 2015, R’s daughter, Z, applied to the court for her solicitor, RD, to be appointed as R’s deputy for property and financial affairs. Z also asked for a cheque drawn for £80,000 on R’s account to be investigated. 

In June 2015, R’s eldest son, S, opposed the application saying that he and his wife SS managed R’s money. S also made various allegations against Z. S instructed a solicitor who proposed his wife, SS, as a deputy.

A hearing took place in September 2015, attended only by Z, her solicitor and counsel. S, SS and their solicitors did not attend. As Senior Judge Lush considered the matter to be urgent, the solicitor, RD, was appointed as interim deputy for R. It was commented that S and the other children from the first marriage did not visit R, nor provide Z with any support in his care. 

In October 2015, SS asked for the order made in September to be set aside on the basis that they had not been notified of the hearing. The fault appeared to lie with solicitors acting for S and SS, in that they operated a ‘paperless case management system’, and the second page of a letter from the OPG giving details of the hearing in September had not been copied or scanned in; a warning to us all.

The matter was listed for December 2015. RD as interim deputy issued a position statement which included details of various complex financial transactions between the USA and Europe, and funds being moved around from account to account and through various company structures. RD had attempted to obtain information about the various transactions, but S, SS and their accountant AP, had not been helpful. 

A position statement from S and SS opposed the appointment of RD’s solicitor as deputy saying that, as she had acted for Z from the outset, she was inevitably biased. The case of Porter v Magill [2002] 2AC357 was considered. The test for determining apparent bias is whether the fair-minded and informed observer, having considered the facts, would consider that there was a reasonable possibility of bias. SS was no longer proposed as a deputy and it was conceded that a professional deputy other than RD was needed.

At the hearing in December 2015, Senior Judge Lush reviewed the law in sections 1 to 4 and 16 of the Mental Capacity Act 2005, regarding appointment of deputies for property and financial affairs. A family member was usually preferred but not in all cases. 

It was held that a suggestion of bias could result from the continued appointment of RD, and that a panel deputy be appointed with experience in complex financial structures. Senior Judge Lush concluded: ‘R’s finances are complicated and involve both corporate and international elements. In my judgment, the deputy should be a member of a firm which has experience of investigating white collar crime, and bringing proceedings for the recovery of misappropriated funds.’

See RP, Re [2016] EWCOP 1

 

Re SH

This is a case regarding an application by the public guardian for the revocation of two lasting powers of attorney (LPA), for property and affairs and for personal welfare.

Both LPAs appointed one of S’s three children, R, as sole attorney. Senior Judge Lush revoked the property and affairs LPA in favour of S’s granddaughter, F. This case is worthy of note because of Senior Judge Lush’s comments and review of the law, relating to appointment of a deputy for personal welfare. 

Section 5 of the Mental Capacity Act 2005 (MCA 2005) means a deputy for personal welfare may not need to be appointed. This section provides protection for people who care for someone who lacks capacity from liability, provided they act in the best interests of the person concerned, and do not act negligently. 

Furthermore, section 16(4) of the MCA 2005 provides that when deciding whether it is in a person’s best interests to appoint a deputy, the court must have regard to the principle that a decision of the court is to be preferred to the appointment of a deputy. 

Any powers conferred on a deputy should be as limited in scope and duration, as is reasonable and practical in the circumstances. Senior Judge Lush commented that section 16(4) is not practical to apply in property and affairs cases, but ‘in personal welfare cases, the court can and does apply section 16(4) quite rigidly.’

Senior Judge Lush also quoted from the MCA 2005 Code of Practice at paragraph 8.38m, that ‘deputies for personal welfare decisions will only be required in the most difficult cases where (a), important and necessary actions cannot be carried out without the court’s authority, or (b), there is no other way of settling the matter in the best interests of the person who lacks capacity to make particular welfare decisions.’ Paragraph 8.39 of the code goes on to give particular examples such as where there is a history of disputes. 

Senior Judge Lush outlined the case of G v E and Manchester City Council and F [2010] EHWC 2512, where Mr Justice Jonathan Baker commented: ‘The vast majority of decisions about incapacitated adults are taken by carers and others without any formal general authority. That was the position prior to the passing of the Mental Capacity Act 2005 under the principle of necessity.’ 

The stress is on everyone working together; the interaction of the common law, the MCA 2005 and the Code of Practice ensures there is an effective way of assisting people without capacity. Section 5 of the MCA 2005 preserves the common law position with the inclusion of a statutory defence to those providing care or treatment to an incapacitated adult, provided they act in his or her best interests, and with regard to the Code of Practice.

In this case, Senior Judge Lush revoked the LPA for personal welfare in favour of R and, crucially, did not make an order that a deputy should be appointed in place of R as attorney. He did not feel it was necessary in respect of S’s day to day care. If there were any disagreement later, then an application could always be made to the court.

See SH, Re [2016] EWCOP 2

 

Jennifer Ridgway is an associate in the private client team at Michelmores

Elizabeth Eyre is an associate at Barlow Robbins

Jennifer and Elizabeth write regular case updates for Private Client Adviser