The Court of Protection recently ruled against two adult children of a protected party (P) after they opportunistically moved P away from his wife (against P’s wishes), repatriating him to England from Spain.
The decision in the on-going case of Re QD (2019) EWCOP 56 may serve as a warning to other relatives who take matters into their own hands and seek to cut others out of the decision-making process.
Re QD (2019)
P had lived in Spain with his second wife for seven years. They fully intended to settle permanently in Spain. P was diagnosed with Parkinson’s disease, later developing Alzheimer’s disease. His needs increased significantly and his two children naturally had concerns that P’s wife was not in a position to meet them. Whenever they visited P in Spain they claimed that neighbours had voiced concerns that his needs were being neglected. There had also been a rumour that P’s wife was having an affair, and was using P’s funds for herself rather than for his care.
The children were appointed as P’s attorneys and this gave them responsibility for P’s health and welfare, including overseeing his care. However, Powers of Attorney do contain limitations, and attorneys often need to seek the Court’s permission before taking more extreme measures. Over a year after they were appointed, they took the decision to move P in a very underhand manner. Once they had relocated P to England, they applied to the Court of Protection for retrospective validity of their actions on the basis of the doctrine of necessity and to restrict P’s on-going contact with his wife.
The doctrine of necessity is a long-standing principle of English common law, invoked by all manner of people seeking to justify drastic steps in extreme situations. In this case, the children argued, P was not being properly cared for and was at considerable risk of harm were he not removed from the care of his wife.
However, there were two hurdles they could not overcome.
Jurisdiction
The first was jurisdiction. P had been living in Spain for seven years and therefore had become a permanent resident of the country. The Spanish legal system was therefore found to have precedence, and given that P’s wife had been making arrangements for P’s current and future care prior to his removal, the Court of Protection decided that the Spanish Courts would need to rule on the matter.
Best interests
Even if the English Court had jurisdiction, the children would have had to convince the Judge that repatriating P against his previously expressed wishes, and wilfully depriving him of the opportunity to live with his wife, satisfied the best interests criteria at section 4 of the Mental Capacity Act 2005.
The best interests criteria sets out many factors the Court must consider. These include paying regard to P’s health and care needs and what is financially advantageous for him. But other factors include:
- P’s values and character;
- His current wishes (as far as he can express them);
- The wishes of close relatives; and
- The possibility of adapting P’s care to give effect to those wishes.
It was possible to provide P with better care in Spain, and thus not frustrate his long-term intentions. The Judge did disapprove of the children’s opportunistic behaviour in moving P without involving his wife.
Comment
The conclusion we can draw from this decision is that the doctrine of necessity is being relied on far less in Court of Protection proceedings as the best interests criteria gives the Court a far more formulaic way of assessing what is best for any protected party.
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