Is illiteracy an impediment to being appointed as Property and Affairs Deputy?

In the case of Re FH [2016] EWCOP 14 the Court of Protection considered the interesting issue of whether illiteracy would preclude a candidate from an appointment as P’s Property and Affairs Deputy.

This case stemmed from an application made by ‘A’ to be appointed as his wife’s ‘P’ property and affairs Deputy.  P had early onset dementia and was deemed unable to manage her property and affairs.  P had three children from her first marriage.  ‘A’ was P’s second husband who was providing her with significant personal care for many years.

P’s children objected to the application on the basis that ‘A’ was ‘uneducated, unable to speak English and unfamiliar with the systems in the UK’.  It was accepted by the Court that ‘A’ spoke limited English requiring the assistance of a translator to deal with formal matters.  ‘A’ could not read or write in English but was able to communicate in his native language.

Senior Judge Lush asked the Public Guardian to comment on some of the following issues:-

1. Whether 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 someone who is illiterate and unable to read the English language or any other language, can be considered suitable for appointment as 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 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;

It should be noted that P’s assets comprised of a property that was in P’s sole name (valued at some £350,000) and that P had limited income that was paid into a joint account with her husband ‘A’.  P’s husband had been managing her affairs for several years with the support of his niece who was able to communicate in English on his behalf fluently when required.

The Court of Protection visitor met with P and ‘A’ at their home and conducted an interview with ‘A’ with the support of an interpreter.  In addition, evidence was sought from P’s social worker on ‘A’s’ application and whether any safeguarding concerns had historically been raised (there had not and the social worker supported the appointment of ‘A’).  P was not able to express her wishes or feelings.

The Public Guardian made the following useful observations in answer to the questions posed by Senior Judge Lush:​

• a prospective deputy should be able to satisfy the court that he has the ability to make best interest decision for property and financial affairs, understand what acting as a deputy entails and that he has suitable arrangements in place enabling the fulfilment of the deputy’s obligations in terms of interfacing with third parties, record keeping and reporting to the Public Guardian;
• the Public Guardian would have concerns about he impact on P’s fund if a deputy sought to use a professional interpreter.  The Public Guardian might have concerns about the use of a non-professional interpreter (e.g. friend, family member) in case they had their own agenda or had a lack of understanding about what they were being asked to translate;
• the Public Guardian will provide support to enable a deputy to perform the deputyship functions.  If post appointment and despite support being provided, the deputy is not able to fulfil the function, the Public Guardian would consider referring to the court the decision on the future of the deputyship;

The Public Guardian commented that ‘A’ had implemented strategies to help him look after P’s affairs, despite having a limited command of English.  ‘A’s’ niece had supported him to manage P’s affairs and had committed to doing so into the future.  The Public Guardian had no concerns about ‘A’s’ niece acting as translator – she had displayed nothing to cause alarm in her function to date.

Senior Judge Lush decided to appoint ‘A’ as his wife’s property and affairs Deputy and his illiteracy was not viewed to be an impediment to his appointment.  The deputyship order was to contain a caveat that ‘A’ was not to dispose or charge her home without further authority from the Court of Protection to alleviate some concerns put forward by the objectors to the initial application.

Senior Judge Lush stated that whilst he was 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…’A’s’ limited ability to speak English and his inability to read and write English…is not so great as to warrant not appointing him as his wife’s Deputy”.

This case no doubt turned on its very specific facts and the appointment of ‘A’ as his wife’s Deputy was supported by the fact that (a) he had suitable arrangements in place to enable him to deal with third parties (b) the order was restricted to A being only able to access the very limited income received by P, as opposed to her property (c) he had the ability to obtain support from his niece when required (d) he had demonstrated an ability to make best interests decisions on P’s behalf (e) he had demonstrated an ability to conduct everyday financial transactions on P’s behalf for the last 10 years.

The position may have been different had the fund been a more complex one to manage, or if consideration had to be given to investment, sale of assets or any of the complexities that come with managing a more significant fund.

Senior Judge Lush reiterated that wherever possible, the Court of Protection will seek to “empower rather than disenfranchise” and that it would be preferable to allow ‘A’ 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 P’s devoted husband”.  What is clear is that the duty to support and empower families to manage their affairs, wherever possible, should be facilitated even if this means finding novel solutions to potentially complex family dynamics.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*