Long v Rodman & Ors

An application to replace a deputy under the Mental Capacity Act 2005 must be determined by reference to the protected person’s best interests and all relevant circumstances. The court should weigh the proposed deputy’s suitability, experience, conduct, the likely costs and disruption of a change, and the practical relationship between connected estates or affairs. Concerns about professional costs do not necessarily justify an immediate change where costs are already subject to assessment or alternative safeguards are available. A replacement should not be ordered merely because another person seeks appointment, particularly where the proposed change would create duplication, conflict, handover difficulties or additional expense.

Mr David Long had been appointed deputy for the property and affairs of Mrs Arline Rodman under the Mental Capacity Act 2005. Mr Jared Shafer, who had been appointed general guardian of Mrs Rodman’s estate by a Nevada court, applied for Mr Long to be replaced and for Mr Shafer to become deputy.

The application was advanced principally on suitability, administration and costs grounds. Mrs Rodman’s affairs were connected with the administration of her late husband’s substantial and complex estate. The central issue was whether replacing Mr Long would be in Mrs Rodman’s best interests.

1. The application to replace Mr Long as deputy was dismissed. The governing question under section 16(7) of the Mental Capacity Act 2005 was Mrs Rodman’s best interests. In applying that test, the court had to consider all relevant circumstances and take account of the views of persons engaged in her care or interested in her welfare.

2. Mr Long was materially better qualified for the role. He had extensive experience of English law, estate administration and Court of Protection practice, whereas there was no evidence that Mr Shafer had comparable experience of matters involving England or English procedure. Mr Shafer’s hostile and litigation-oriented approach also gave the court less confidence in his suitability.

3. The likely consequences of a change weighed strongly against removal. A new deputy would incur handover costs, would need to familiarise himself with Mrs Rodman’s affairs and might become involved in the administration of Mr Rodman’s estate. Having different people deal with the deputyship and the connected estate could generate conflict, duplication and further expense. Replacing both office-holders would create additional difficulties because the administration was midstream, including in relation to tax liabilities.

4. Questions about Charles Russell’s fees did not justify an immediate change. The deputyship costs were already subject to annual assessment. Any issue concerning assessment of estate-administration costs did not require immediate replacement because Charles Russell had undertaken not to rely on the statutory time-limits to prevent assessment. The application itself had also generated substantial costs.

5. The daughters’ general statement that they had lost confidence in Mr Long carried limited weight because its reasons were unexplained and unsupported by evidence. Overall, the balance came down heavily in favour of retaining Mr Long as deputy.