The missing jigsaw piece

The case of Re GM [2013] COPLR 290 is a vivid illustration of the issues surrounding lay deputies and the risk of financial abuse. The case served as a clear warning to all attorneys and deputies, but the issue was explored further at a second hearing of Re Meek [2014] EWCOP 1.

In Re GM, Mrs Gladys Meek's lay deputies had sought retrospective ratification of nearly £300,000 of expenses and gifts, including the purchase of Rolex and Omega watches and football season tickets. Senior Judge (SJ) Lush had no hesitation in removing the lay deputies and stated that they had considered their appointment "a licence to loot." However, he had suggested that an application for a statutory will was required before the court could consider whether to call in the security bond.

The application to Judge Hodge QC was therefore an application by Mrs Meek's new deputy for authority to execute a statutory will, to call in the security bond, and for directions as to whether the professional deputy should report the lay former deputy's actions to the police.

SJ Lush had stated that "a statutory will is the missing piece of the jigsaw". There was a chance that the lay deputies may have been Mrs Meek's residuary beneficiaries under a statutory will, making the calling in of the security bond an administrative exercise only.

The consideration of the statutory will was interesting not only from the perspective of the relationship between the parties, but because it contained a detailed examination of the factors to be considered by the court in authorising the execution of a will. The court considered the balance between acting in the best interests of the patient, considering that a patient would wish to have 'done the right thing' by their will and be remembered for it after their passing, and considering what the patient themselves would have thought to do rather than what a reasonable person in that person's position might do, balanced with the court's need to objectively act in the best interests of the patient. In considering these complex and competing factors, the court endorsed the balance sheet approach set out in a number of previous statutory will cases.

The court considered the historical relationship with the two relatives who would have received Mrs Meek's estate under intestacy. That Mrs Meek had fallen out with the one relative, and had not seen the other for many years was noted. It was also noted that Mrs Meek was "a difficult and unbending lady" and, "once one had fallen out with Gladys, there was no going back". In considering whether to make gifts to the lay deputies who had now been removed from dealing with Mrs Meek's affairs, Judge Hodge QC noted that she would have been horrified by her deputies' excessive expenditure and went on to state that, "but for their misconduct, the former deputies would have been obvious people to benefit from Gladys Meek's estate, but that their conduct has been outstandingly bad".

In the event, the judge chose to make a gift of 25 per cent of the estate to the goddaughter of Mrs Meek's late daughter, noting that Mrs Meek had inherited the bulk of her estate from her daughter and that she would have considered her daughter's close relationship with her goddaughter if she was choosing how to leave her estate. The remainder of Mrs Meek's estate was to be given to charities supported by her prior to her loss of capacity. Finally, the court chose to call in the full security bond of £250,000, leaving the bondmen to pursue the former deputies for the monies, rather than cause Mrs Meek's estate to be further diminished by the cost of recovery proceedings.

This judgment differed from the previous issues heard by SJ Lush, as Mrs Meek sadly passed away only a short time after the matter had been heard. As the subject of the dispute was no longer alive, the court (and several of the named parties) was of the view that anonymity was no longer required, leaving the names of all parties, including the former deputies, to be published with the judgment.

Leah Steele is a solicitor at Hugh James

She writes the regular vulnerable clients comment in Private Client Adviser