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Family Law

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02 NOV 2012

DEPUTYSHIP: Re Clarke (No 1) [2012] EWHC 2256 (COP)

(Court of Protection, Peter Jackson J, 31 July 2012)

The 72-year-old woman had suffered severe injuries, including brain injuries, in a road traffic accident 17 years ago. As a result she received compensation of £775,000 based on a life expectancy of 70. Her children could not agree on who should administer the fund and so a solicitor was appointed as receiver and later as deputy.

The woman lived with her eldest son and his partner in a property she purchased and spent large amounts of time with them in a rented property in Spain. The property in the UK, worth approximately £200-250,000 was now her only substantial asset. She currently survived on benefits of £9,700 per annum and had been drawing from her compensation fund at a rate of £60,000, on the advice of the deputy that had recently reduced to £17,000pa but now only £5,000 remained.

The son applied for the discharge of the deputy which was opposed by other family members who believed he would spend the compensation fund on himself. The issue also arose of whether the property should be sold to fund the woman's care for the rest of her lifetime. The woman had said that she wished upon her death to leave the property to her son.

A wide-ranging investigation into the issues between the family and the deputy would be disproportionate, impractical and not in the woman's interests.

Expert evidence from a psychologist and a psychiatrist was clear that the woman had capacity to make a will but they had differences of opinion as to whether she had capacity to manage her day-to-day affairs and to weigh factors to make decisions such as whether to sell her property.

The management of the woman's benefits would be transferred to the son. The deputyship would remain in place for now but it would be unnecessary once a decision on the woman's property was taken. It was unnecessary to determine whether the woman had capacity to manage her day-to-day affairs because it was clearly in her best interests for her carer, her son, to do so.

On the totality of the evidence it was clear that even if she were given careful assistance the woman lacked capacity to decide whether her property should be sold or otherwise how her ongoing care would be financed. Therefore, the matter would be adjourned for parties to prepare their submissions on what course would be in her best interests.

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