Take the money and… apply for retrospective approval by John Bolch

Family|Family Law|October 9th 2013

Piggy bankMJ and JM v The Public Guardian is a sorry tale.

This Court of Protection case concerned ‘GM’, a 93-year-old woman who suffers from vascular dementia and is therefore incapable of managing her affairs. Accordingly, in August 2010 her late husband’s his niece (‘JM’ in case reports) and his great-niece (‘MJ’) were appointed to be her deputies for property and affairs.

In October 2011 MJ and JM applied to the court for the retrospective approval of a number of gifts they made from GM’s funds to themselves, their families, some friends and several charities, and also for the court to agree what they described as their deputyship expenses. After investigation by the Public Guardian, it emerged that they were seeking approval of gifts of £231,259.50 and expenses of £46,552.24, making a grand total of £277,811.74. The gifts included £57,352 to charity, £55,856 to MJ and £48,396.50 to JM. The ‘expenses’ included cars for MJ and JM – they claimed they needed these so they could visit GM – and computers that they claimed they needed to monitor GM’s investments online.

The Public Guardian recommended to the court that almost all of the non-charitable gifts should not be approved. He also considered that the cars and computers were not expenses, but further unauthorised gifts.

The application was heard by Judge Denzil Lush.

On the expenses point, Judge Lush agreed with the Public Guardian. Deputies are entitled to be reimbursed for expenses that they have incurred. However, the deputies had not incurred any pecuniary loss. The cars and computers were not therefore expenses, but additional unauthorised gifts. Accordingly, he refused to ratify this expenditure.

As to the gifts, the deputies were empowered to make gifts to any charity to which GM made or might have been expected to make gifts, and on ‘customary occasions’ (e.g. birthdays) to relatives or persons connected with her “provided that the value of each such gift is not unreasonable having regard to all the circumstances and, in particular, the size of her estate”. After considering the law and the facts, Judge Lush approved the charitable gifts and gifts to the applicants and their families up to an amount equal to GM’s annual inheritance tax exemptions (£13,500), but refused to approve most of the other gifts, saying that he did not accept that they were made in GM’s best interests. He also commented:

“I realise that MJ and JM are the only visitors that GM receives, but this does not give them a licence to loot, and I was unimpressed by the veiled threat that, if the court were to remove them as deputies, they would find it difficult to continue seeing GM.”

Accordingly, Judge Lush ordered that MJ and JM must repay the sum of £204,459.74 to GM’s estate.

He further stated that if an application were made to make a ‘statutory will’ on GM’s behalf, the judge considering the application “may take the view that, if she had testamentary capacity and was fully aware of what has been going on, GM would be outraged by the applicants’ conduct and would make no provision for them at all.”

Needless to say, Judge Lush also revoked MJ and JM’s appointment as deputies.

John Bolch is a family law commentator

Photo by Philip Brewer via Flickr under a Creative Commons licence

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

Comments(2)

  1. Tulsa Divorce Lawyer Matt Ingham says:

    Here in Oklahoma USA the law refers to them as guardians but it is the same basic concept nonetheless.

  2. Luke says:

    These women are basically thieves in my view, I also think threatening the Judge with their future non-attendance to the poor woman if they didn’t get their ‘expenses’ was particularly stupid.

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