AS, Re [2015] EWHC 79 (COP) (26 November 2015)

Posted on Monday, January 11th, 2016

Picture of Alan PickardSenior Judge Lush rejects a Friend’s Application to replace a Local Authority as Deputy

These proceedings related to the Protected Party, an elderly widow who was diagnosed with Alzheimer’s dementia and since the middle of 2013 had resided in a nursing home. Her closest relatives were her son who lived in Los Angeles but had very little, if any, contact with her and her sister-in-law who rarely visited her.

The Protected Party needed support in managing her property and financial affairs, and because no suitable family member was willing/or able to assist her, a London Borough were appointed as Deputy for property and affairs on 20/8/14. The Deputy later discovered that Protected Party’s neighbour was without any formal authority letting the upper floors of her house to tenants and was receiving the monthly rents of £600 and £750.

In April 2015 the Deputy issued possession proceedings on the Protected Party’s behalf and hearings took place on May and July 2015.

The Applicant was the Protected Party’s neighbour who was also 1st Defendant in the County Court proceedings. In his witness statement he stated inter alia:

“I have known the Protected Party for over 40 years as a friend and neighbour. Prior to lacking capacity she had requested that I attend to her affairs. I was assisting her with her property and organising her finances. She wanted this arrangement to be formalised and informed me that she wished to make a Lasting Power of Attorney in my favour. Unfortunately before she could do this she lost capacity. I continued to deal with her affairs as I had always done and followed her wishes. Her son, who lives in the USA was aware of what I was doing and supported me. I was subsequently informed that the local authority had applied to become her Deputy. I was served with papers and lodged an objection. It would seem that the COP5, which was sent recorded delivery to the court was never received and the order was made.”

The Deputy raised objections which comprised:

“The London Borough have issued possession proceedings in the County Court seeking a possession order with a money judgment order.

The applicant is occupying property owned by the Protected Party and placed tenants unlawfully at the property. He has entered into purported tenancy without the authority of the Protected Party or the local authority. He has been receiving the rental income.”

Further submissions were filed and a Hearing took place in November 2015 before Senior Judge Lush when he dismissed the application. His reasons were inter alia:

The Applicant failed to prove, on the balance of probabilities, that the Deputy has behaved in a way that has contravened the authority conferred on it by the court or is not in the Protected Party best interests, or that it proposes to act in such a way.

The Applicant also failed to satisfy the court that it would be in the Protected Party’ best interests for him to be appointed as her Deputy for property and affairs in place of the Council.

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