A different type of family breakdown,

Family Law|September 10th 2014

Family lawyers, obviously, deal with the consequences of family breakdown. Usually that breakdown takes the form of spouses or partners separating, but it can take other forms as well.

Take, for example, the recent Court of Protection case DG & Others v Peter. The case involved a contested application for the appointment of a deputy for property and affairs for a man in his nineties suffering from Alzheimer’s disease. The application was made by two of the man’s three sons. The problem was, the other son objected and wanted to be appointed the deputy himself.

The man, DG, was born in 1921. Until recently he lived in a flat with his wife, FG, despite both having become increasingly frail and infirm. DG, as I’ve said, suffered from Alzheimer’s disease and he was admitted to hospital on the 26th of September last, following an acute delirious episode.

It was clearly impossible to leave FG on her own in the flat. Accordingly, two of the sons, David and Barry, with the agreement of Surrey Social Services and her General Practitioner, arranged for her to be admitted to a residential home for respite care. The other brother, Peter, was not consulted.

After he was discharged from hospital in October DG went to live in the residential home with FG. FG died on the 24th of April. On the 30th of May Surrey County Council concluded that it was in DG’s best interest to remain in the home.

On the 20th of January David and Barry had applied to be appointed as DG’s deputies for property and affairs. They correctly assumed that Peter would object to the application. They considered that his objection would be unnecessary, time-consuming, expensive, and generally contrary to their father’s best interests, so they didn’t bother to give him notice of the application.

The case went before Senior Judge Lush in the Court of Protection. One of the first things he did was to order David and Barry to send a copy of the application to Peter, as it is one of the fundamental principles of justice that a judge should hear what the other side has to say, too.

Peter made it clear that he never approved of the residential home and he had raised numerous complaints relating to issues such as diet, cleanliness and security. He saw his role as championing his parents’ wish to be liberated and returned to their own flat, and he blamed the care home for his mother’s death. He alleged that David and Barry would use their role as deputies to take over DG’s affairs in order to have ‘total control’.

It was clear that all three brothers cared deeply for their father and had his best interests at heart. However, it was also clear (and accepted by them) that there would be no point in the court appointing all three of them to act jointly, because they simply could not work together and would not see eye to eye.

In order to come to a decision Senior Judge Lush compared the respective strengths and weaknesses of David and Barry, on the one hand, and Peter, on the other hand. He found that there was nothing to choose between them in many ways, for example their ability to act and their relationship with their father. However, there were two criteria that did tip the balance in favour of David and Barry:

Firstly, geographical location. David and Barry both lived in Surrey and visited their father three times a week, whereas Peter lived in Yorkshire and was only able to see his father three or four times a year.

Secondly, David and Barry were simply better able to interact with others than Peter. Whereas David and Barry were able to interact successfully with the carers and various agencies which had an interest in their father’s welfare, Peter’s relationship with almost everyone was fraught.

Accordingly, David and Barry were appointed as DG’s deputies, with the requirement (as suggested by them) that they keep Peter informed.

Photo by Eirik Refsdal via Flickr

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