Jersey Unreported Judgments

Capacity - application to appoint a delegate.

[2022]JRC008

Royal Court

(Probate and Protection Division)

13 January 2022

Before     :

T. J. Le Cocq, Esq., Bailiff, and Jurats Ramsden and Hughes

IN THE MATTER OF AN APPLICATION TO APPOINT A DELEGATE FOR J

AND IN THE MATTER OF THE CAPACITY AND SELF DETERMINATION (JERSEY) LAW 2016

Advocate D. V. Blackmore, Amicus Curiae .

judgment

the Bailiff

1.        On 22^nd December 2021 we appointed Advocate Rui Tremoceiro ("Advocate Tremoceiro") as delegate of the property and affairs of [Redacted] ("J").  As that appointment was opposed by [Redacted] ("L") who himself applied to be appointed as J's delegate, in this short judgment we inform the parties of the basic reasons for our decision. 

2.        The Court was much indebted to the efforts of Advocate Davida Blackmore who as Amicus Curiae has provided a helpful skeleton argument that analysed the evidentiary position for the benefit of the Court.  We also had the benefit of affidavits from Advocate Tremoceiro and L and heard from both, although neither gave evidence as such.  We also had an affidavit from [Redacted] ("N"), J's long time friend. 

3.        J is suffering under an incapacity as a result of a medical cause resulting in moderate to severe irreversible cognitive impairment. 

4.        N applied to become her delegate and at the same time L, J's brother, objected to the appointment of N and put himself forward as delegate.  N's application was supported by Advocate Tremoceiro who was J's legal adviser.    

5.        N subsequently indicated that she no longer wished to be considered as delegate following which a further application was received from Advocate Tremoceiro who applied to become delegate for J. 

6.        Advocate Tremoceiro had held back from applying previously because he had supported the application of N but when N withdrew he felt it incumbent upon him to make the application.  The main reason for Advocate Tremoceiro's application was that he believed from all he knew of J who he had known for decades and for whom he had acted in a number of different matters that she would not have wanted L from whom she had been estranged for a long period to have charge of her property and affairs. 

7.        We do not need to go into the full details relating to each of the potential applicants.  In brief, however, L is J's brother.  He is a resident in Guernsey and whilst he accepts that there have been difficulties between himself and J in the past, he thought that to an extent at least these were as a result of J's use of alcohol and, in any event, matters had improved in recent times during J's illness.  When he visited her, she would acknowledge him and smile and say that she loved him and needed him.  He indicated that if appointed, he would seek remuneration for performing the role of delegate and would likely incur expenses in travelling between Guernsey and Jersey.  He had letters of support for his application.  

8.        Advocate Tremoceiro, as indicated above, had previously acted as J's legal adviser.  He was willing and able to act as her delegate but would inevitably charge for his professional services.  He had also been J's work colleague in earlier years and had accordingly known her for a number of decades.  He explained in his affidavit his reasons for applying.  They were:

"After [N's] withdrawal of her application to become [J's] delegate, I feel I need to step forward to ensure [J's] wishes are complied with." 

9.        And further, he states:

"I have sworn an affidavit in the context of applications by [L] and [N] to become delegates.  I would have been happy for [N] to be [J's] delegate but [N] has now withdrawn her application.  I do not believe that [J] would have wished her brother to be in charge of her affairs."

10.      Exhibited to the affidavits were exchanges between J and L which show that there was material mistrust and tension between them for significant periods.  This arose, in part at least, as a result of the administration by L of his and J's late father's affairs. 

11.      The provisions relating to the appointment of a delegate are to be found at Part 4 of the Capacity and Self-Determination (Jersey) Law 2016 ("the Law").  At Article 34 of the Law it is stated:

"Qualifications of and general provisions concerning delegates

(1)       Any person may be appointed by the Court as a delegate under this Part, but an individual person must for this purpose be aged 18 years or over.

(2)       A delegate must give consent to being appointed as such.

(3)       The Court may appoint an individual by appointing the holder for the time being of a specified office or position (including, for the avoidance of doubt, the Viscount, in his or her capacity as such).

(4)       The Court may appoint 2 or more delegates to act -

(a)        jointly;

(b)        jointly and severally; or

(c)        jointly in respect of some matters and jointly and severally in respect of other matters.

(5)       The Court may, at the same time as appointing any delegate, appoint one or more other persons to succeed a delegate in such circumstances, or on the happening of such events, and for such period, as the Court may specify.

(6)       A delegate is to be treated as P's agent in relation to anything done within the scope of the delegate's appointment and in accordance with this Part, but the powers and duties imposed by the Court on the appointment of a delegate may include (without derogation from the generality of the Court's powers in this respect) the imposition of a financial limit on the delegate's authority.

(7)       A delegate is entitled to be reimbursed out of P's property for reasonable expenses in the discharge of functions when acting as delegate, and the Court may direct, when appointing a delegate, that the delegate should be entitled to remuneration out of P's property for so acting (subject to such limit as may be prescribed, whether by reference to a proportion of P's property or to an amount or otherwise).

(8)       The Court may require a delegate -

(a)        to give to the Attorney General or (as the Court may specify) the Judicial Greffier such security as the Court thinks fit for the due discharge of the delegate's functions; and

(b)        to provide to the Court, or to such other persons as the Court may specify, such reports at such times or intervals as the Court may direct.

(9)       In the exercise of its powers under paragraph(8)(b), the Court shall have regard to any further provision which may be made by the States by Regulations with respect to the supervision of delegates, under Article 36.

(10)     The appointment of a delegate shall cease upon the death of the delegate or of P, or upon the delegate's resignation, but P's death shall not affect the legality of anything done by the delegate in good faith and without knowing of P's death."

12.      We have been referred to various cases in England and Wales which appear to us to be relevant.  In Re BM [2014] EWCOP B20, the court at paragraph 46 et seq said the following:

"46.    No one has an automatic right to be appointed as deputy. The Court of Protection has a discretion as to whom it appoints and, as I have said before in other judgments, traditionally the court has preferred to appoint a relative or friend as deputy (if it is satisfied that it is in P"s best interests to do so), rather than appoint a complete stranger.

47.      This is because a relative or friend is usually familiar with P"s affairs and aware of their wishes and feelings. Someone with a close personal knowledge of P is also likely to be in a better position to meet the obligation of a deputy to consult with P, and to permit and encourage them to participate, or to improve their ability to participate, as fully as possible in any act or decision affecting them. And, because professionals charge for their services, the appointment of a relative or friend is preferred for reasons of economy.

48.      There are, however, cases in which the court wouldn't contemplate appointing a particular family member or friend as deputy. These include situations where:

(a)       the proposed deputy has physically, psychologically, financially or emotionally abused P;

(b)       there is a need to investigate dealings with P's assets prior to the matter being brought to the court's attention, and the proposed deputy's conduct is the subject of that investigation;

(c)       there is real a conflict of interests;

(d)       the proposed deputy has an unsatisfactory track record in managing his or her own financial affairs; and

(e)       there is ongoing friction between various family members, which is likely to interfere with the proper administration of P's affairs."

13.      In Re RPZ [2016] EWCOP 1, the court at paragraph 32 et seq of the judgment said this:

"32.    The Court of Protection has a discretion as to whom it appoints and has traditionally preferred to appoint a relative or friend as deputy (as long as it is satisfied that it is in P's best interests to do so), rather than a complete stranger, out of respect for their relationship, which is now reflected in Article 8 of the European Convention on Human Rights, but there are other, more practical reasons for choosing a family member.

33.      A relative will usually be familiar with P's affairs, and aware of their wishes and feelings. Someone with a close personal knowledge of P is also likely to be in a better position to meet the obligation of a deputy to consult with P, and to permit and encourage them to participate, or to improve their ability to participate, as fully as possible in any act or decision affecting them.

34.      Naturally, there are circumstances in which the court wouldn't countenance appointing a family member as deputy; for example, where:

(a)       the proposed deputy has physically, emotionally or financially abused P;

(b)       there is a need to investigate dealings with P's assets prior to the matter being brought to the court's attention, and the proposed deputy's conduct is the subject of that investigation;

(c)       there is an actual conflict of interests, rather than simply a potential conflict;

(d)       the proposed deputy has an unsatisfactory track record in managing his or her own financial affairs;

(e)       there is ongoing friction between various family members, which is likely to interfere with the proper administration of P's affairs; and

(f)        there is a need to ensure that P is free from undue influence, particularly the influence exerted by the person seeking to be appointed as deputy."

14.      The Court, at paragraph 35 of the judgment, referred to an earlier decision in which a balance sheet analysis had been carried out under certain headings.  Although the court chose not to apply a balance sheet test in the case before it, the court referred to a number of factors which could be considered.  They were:

(a)       Willingness to act;

(b)       Ability to act;

(c)       Qualifications;

(d)       Place of residence or business;

(e)       Security;

(f)        Conduct before, as well as during, the proceedings;

(g)       Nature of the relationship with the person to whom the proceedings relate;

(h)       P's wishes and feelings;

(i)        The views of others who are interested in P's welfare;

(j)        The effect of hostility;

(k)       Conflicts of interest;

(l)        Remuneration; and

(m)     The factors of magnetic importance (if any).

15.      As we have said, we do not suggest that the list of factors set out in the preceding paragraph is exhaustive or indeed that are all relevant in any particular determination.  However, we think that they are a useful way of looking at certain applications and we have found them of help in the instant case.

16.      One further authority seems to us to be of potential relevance in the instant application.  This Court In the matter of the Curatorship of Mr L and Mr B [2010] JRC 151, considered the appointment of non-resident curators under the old regime of curatorship and said this at paragraphs 5 and 6:

"5.      The potential dangers of appointing a non-resident curator were well summarised by the Court at paragraphs 6 and 7 of its judgment in Mrs B:-

"6.      In considering the exercise of the Court's power to appoint a curator, it is the interests of the interdict that are paramount.  The imposition of a curatorship is a drastic order removing as it does a person's control over his or her assets.  It seems to us objectionable as a matter of principle for the Court, without very good cause, to remove control of the interdict's assets by imposing a curatorship and then passing control of those assets to someone outside the jurisdiction and therefore beyond the control of the Court.  The assets of the interdict must remain available to be applied for the benefit of the interdict and the only way the Court can ensure that the curator complies with his or her duties and obligations under the Law is through the exercise of its jurisdiction over the person of the curator.  If the curator is outside the jurisdiction of the Court, then the Court has no means of enforcing those duties and obligations.

7.        We accept that there is nothing (other than possible safeguards in Article 43(17) of the Law), to prevent a Jersey resident curator from transferring the moveable property of the interdict out of the Island but that curator remains subject to the jurisdiction of the court whose orders can be enforced against his or her person.  If a non-resident curator were to do so then both the moveable assets and their control will have been removed from the jurisdiction.  An interdict who recovers his or her mental capacity and is re-instated or in the event of death, his or her estate or a replacement curator would have very serious grounds for complaint if it was found that this was the position.  In extremis, there may be nothing in the Island to fund recovery proceedings abroad. ..."

6.        To this we would add the concerns of the Registrar that, even in the case of resident curators, her Department often has to spend time chasing curators to comply with their obligations in terms of filing accounts etc.  In the case of a non-resident curator, there would be greater difficulty in enforcing these measures."

17.      As we have said, some of the factors mentioned above are not directly relevant however, the following factors are, in our judgment, relevant:

(a)       Firstly, although the Court can appoint a delegate who is not resident in Jersey, in general terms it prefers not to appoint someone who is not subject to the Court's immediate jurisdiction.  This could generally, however, be met, if the Court felt it appropriate, by an insurance policy.

(b)       The issue of conflict of interest appeared to us to be relevant.  L is the executor of his late father's estate and he strongly believes, as he frankly told us, that J owes that estate several thousand pounds.  Advocate Tremoceiro who had acted for J said he was wholly unaware of this debt although L indicated that he had documentation to support it.  Clearly the Court is not in a position to make a determination of this particular issue at this time.  However, the fact is that were L to be appointed as delegate it seems to us to be highly unlikely that he would give any serious consideration to the possibility that the debt might not be due.  He has a duty as executor of his late father's estate of which he is also beneficiary (together with others).  This is a clear conflict of interest and although we do not consider it incapable of management, in other circumstances, nonetheless it is a factor that we take into account.

(c)       Perhaps the most compelling factors are the relationship between L and J and the likely preferences or choices that would be made by J.  The evidence before us in the affidavits from N and from Advocate Tremoceiro clearly indicate that J and L have been estranged and that, in Advocate Tremoceiro's words, mutual mistrust existed between them.  L is quite candid and agrees that their relationship was not good but as we have said tells us that since he has been visiting his sister it is much improved, she smiles at him, tells him that she loves him and needs him.  He believes that she would now, were she capable of doing so, be perfectly happy to have him to manage her affairs.

(d)       The difficulty with this argument is that J lacks capacity, she is unable to express that view and form a judgment.  The Court must look at the best evidence that it has.  L's statement that J responds well and positively to him in her current state, which is a prima facie one in which she does not have capacity, on the one hand is offset by the clear understanding of Advocate Tremoceiro and of N of the view that J had of L at the time when she was undoubtedly competent to give instructions and to deal with her affairs.  As we have said, we have also seen email exchanges between them which indicate a very difficult relationship and clearly a strong element of mistrust.  On the best evidence before us we do not think that J would want L to be her delegate.

18.      That last factor is to us determinative.   We must do our best to determine what J's wishes would be and the evidence of her wishes at a time when she was capable of expressing them with capacity is clear. 

19.      The principal argument against Advocate Tremoceiro being appointed as delegate is because as a professional he will enviably charge professional fees but it is well understood that professional fees should reflect the size of the estate that is being managed and the lowest charging level of fee earner who is competent to discharge it should be applied to a particular job. 

20.      In the circumstances, we are satisfied that Mr Tremoceiro is the appropriate individual to appoint and accordingly we made the decision we did and the oath of office of delegate was administered to Advocate Tremoceiro. 

Authorities

Capacity and Self-Determination (Jersey) Law 2016.

Re BM [2014] EWCOP B20. 

Re RPZ [2016] EWCOP 1. 

Mr L and Mr B [2010] JRC 151.