Re FH [2016] EWCOP 14  (Senior Judge Lush)

Deputies – Property and Financial Affairs Summary

In this case the Senior Judge dealt with an application by P’s husband to become her property and affairs deputy where he had limited command of spoken English and none of written English.

P suffered from advanced dementia but lived at home with her husband who provided all her care with limited local authority support. He was her second husband and had come to England from Pakistan in 1998. She had two children by her first marriage. One, the daughter, lived nearby, the other, the son, lived in Spain.

The children, principally the daughter, objected to the husband’s application to become financial deputy and asked that the daughter be appointed. The ground of opposition that raised a point of principle was the husband’s inability to speak good English and his inability to read or write English at all.

To that end, the Senior Judge commissioned a section 49 report from the Public Guardian asking the following questions;

  1. Whether the Public Guardian considers that a person who is unable to understand and speak the English language can be considered suitable for appointment as a deputy for property and financial affairs.
  2. Whether he considers that someone who is illiterate and unable to read the English language, or any other language, can be considered suitable for appointment as a deputy for property and affairs.
  3. Whether the response to the above questions would be the same in respect of an application to be appointed as a personal welfare deputy.
  4. What an acceptable minimum would be in terms of literacy and numeracy skills for appointment as a deputy for property and affairs.
  5. What an acceptable minimum would be in terms of literacy and numeracy skills for appointment as a deputy for personal welfare.
  6. The extent to which support in performing the deputyship functions may be acceptable.
  7. The extent (if any) to which Abdul (P’s husband) may lack the essential skills required of a deputy for property and affairs or personal welfare.
  8. Whether Fahmida (P) is capable of expressing any wishes or feelings in respect of this application.

The Public Guardian reported as follows;

  • In answer to questions 1-5:

"The Public Guardian is unable to comment on this in a general sense and is of the opinion that it will depend upon whether a prospective deputy is able to satisfy the court that he has the ability to make best interest decisions for property and financial affairs, understands what acting as a deputy entails, and that he has suitable arrangements in place enabling the fulfilment of a deputy's obligations in terms of interfacing with third parties, record keeping and reporting to the Public Guardian."

In addition in relation to question 1:

“The Public Guardian would have concerns about the impact on P's funds if a deputy seeks to use a professional interpreter. The Public Guardian would also have concerns about the use of a non-professional interpreter, such as a friend or family member, in case they had their own agenda or had a lack of understanding about what they were being asked to translate."

In answer to question 6:

“The Public Guardian is unable to comment on this in a general sense and is of the opinion that, if the court appoints a person suitable to be appointed as deputy, for either property and affairs or personal welfare, the Public Guardian will provide support to enable that deputy to perform the deputyship functions.

The Public Guardian's position is that if, after a deputy's appointment, the Public Guardian is of the opinion that, despite support being provided, the deputy is not able to fulfil the deputyship functions, the Public Guardian will consider referring to the court a decision on the future of the deputyship."

In answer to question 7:

"Although the Court of Protection General Visitor advised that Abdul's command of the English language is limited, the evidence shows that he has managed to put strategies in place to help him, and has managed to look after Fahmida's affairs for a number of years now.

Abdul's niece confirmed that she provides the support he needs to manage Fahmida's affairs. The Court of Protection General Visitor made Abdul's niece aware of what being a deputy involves and the niece confirmed that she is prepared to continue supporting Abdul and would also continue to do so is he was appointed Fahmida's deputy.

Fahmida and Abdul receive support from a social worker for the Mental Health Team at the London Borough of Redbridge and their social worker advised he has no concerns about Abdul managing Fahmida's affairs and thinks Abdul is the obvious choice.

Whilst the Public Guardian might have concerns about a family member being used as an interpreter for a deputy in this case, there is no evidence to support any concerns in respect of Adeela and the support she has provided interpreting for Abdul to date.

The Public Guardian's position is that he has no objection to Abdul being appointed as Fahmida's deputy for property and affairs or personal welfare."

In answer to question 8:

“The Court of Protection General Visitor advised on 3 December 2015 that Fahmida is not capable of expressing any wishes or feelings in respect of this application. Her lack of capacity has also been confirmed by her social worker from the Mental Health Team at the London Borough of Redbridge.

The Senior Judge identified the central question as follows:

  1. The question I have to decide is whether Abdul's functional illiteracy is of such a degree as to make it impossible for him to manage Fahmida's property and affairs effectively and in her best interests.
  2. I am loath to underestimate and undermine the importance of basic literacy and numeracy skills, which are generally expected of any candidate who is applying to be appointed as a deputy for property and affairs.
  3. However, I am not convinced that Abdul's limited ability to speak English, and his inability to read and write English (particularly in his encounters with officialdom) is so great as to warrant not appointing him as his wife's deputy.

It was significant that he had managed well, with his niece’s assistance, for some time and that P’s affairs were relatively straight forward especially as the order would exclude any power to deal with P’s property, see paragraph 53.

The Senior Judge, therefore, appointed P’s husband her property and affairs deputy with this ringing endorsement:

“54. The court's function is, wherever possible, to empower rather than disenfranchise and, in my view, it would be preferable to allow Abdul to receive support in carrying out his functions as deputy in a way that is proportionate to his needs, rather than refuse to appoint him. In this case, it is unlikely that someone with first-rate literacy skills would prove to be a better deputy than Fahmida's devoted husband.

55. I am satisfied, therefore, that it would be in Fahmida's best interests to appoint Abdul to be her deputy for property and affairs, and that this course of action is less restrictive than any alternative.

Comment

This decision is an important one in terms of recognising that the duties to support and empower the individual concerned extend to being suitably creative and flexible as regards those who might be appointed by the court as their proxy decision-makers. It would have been all too easy to take an approach which in the name of securing Fahmida’s rights ended up depriving her of the support of her devoted husband, who knows her better than any professional could ever do.