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Brother rejected as deputy after failing to notify relatives

Monday, 3 November, 2014

The England and Wales Court of Protection (COP) has ruled on the case of an elderly man who went into residential care following a stroke and whose house was then taken over by his brother.

The case, BIM & others v MD (2014 EWCOP 39), actually concerns an application for deputyship for the man's wife, who has Alzheimer's disease and has been living in a care home for years. In the published judgment she is referred to as BIM and her husband as RM.

RM has acted as BIM's deputy for property and affairs ever since she became institutionalised in 2010. This arrangement ended in December 2013 when RM was incapacitated by a stroke and could no longer act for his wife.

He had previously executed lasting powers of attorney appointing his brother and sister-in-law, AM and DM, as his attorneys. These have been registered at the Office of the Public Guardian. Following RM's stroke, AM and DM applied to the Court of Protection to be appointed as BIM's deputy.

However, when making the application, AM and DM did not tell the court that BIM had two sons by a previous marriage.

While the COP was preparing to hear the application, one of these sons, referred to as MD, became aware of the situation and filed an objection.

Two months later, he made a further discovery. AM and DM had hired a removal van and cleared the house owned by his mother and stepfather of all its contents. They had also let the house to their own son as assured shorthold tenant.

Family relations rapidly deteriorated. AM and DM reported MD to the police for unlawfully entering the house, which they claimed belonged to them alone. (There appears to be some suspicion that BIM's share of the property may have been transferred to someone else without her knowledge, though the judgment does not explain why.)

MD then appointed solicitors to take the matter up with the Court of Protection. He asserted that it would be 'positively contrary to his mother's best interest for AM and DM to be appointed as her deputy'. Their behaviour, said his counsel, 'at worst indicates an intention to strip her of any valuable assets behind the backs of her blood relatives'. Instead, MD asked for two partners at his solicitors to be appointed as his mother's deputies.

The Court of Protection hearing was held last month. AM and DM did not attend, and in their absence Senior Judge Lush rejected their application for deputyship over BIM's affairs and appointed the solicitors instead.

The property needs to be sold in order to pay for BIM's residential care fees, and so its ownership and the legal position of the new tenant will have to be investigated and rectified. A professional deputy, said Lush, will be in a better position 'to carry out a forensic investigation into any misconduct on the part of [AM and DM orĀ  RM] and to take the steps that may be necessary or expedient to restore BIM's estate to its correct level'.

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