WVH & Anor v WVG

Facts

P, a 72-year-old man diagnosed with dementia in January 2020, was certified as lacking mental capacity in a medical report dated 2 June 2022. In July 2022 two of his children, his second daughter X and his youngest son Y, applied in FC/OSM 233/2022 to be his joint deputies. They did not tell the court about P's relationship with Z, a woman with whom he had lived since separating from his wife in 2014, and Z was not served. The deputyship order was made in September 2022.

Z later applied in FC/OSM 253/2023 to revoke that order. On 1 December 2023 the District Judge dismissed her application but appointed her a joint deputy with X and Y over P's personal welfare, left his property and affairs with the children, and gave her daily visiting rights. Both sides appealed: the children in HCF/DCA 121/2023 and Z in HCF/DCA 123/2023.

After mediation the parties signed a Settlement Agreement on 12 June 2024, under which Z's appeal would be dismissed, the children's appeal allowed, and all would work towards easing P into an Assisted Living Facility. When the children placed P in a care centre, Z said they had breached the agreement by not seeking her consent and withdrew her consent to the draft consent orders. The children said Z had been disruptive at the centre and had interfered with P's medication and medical advice; Z said the centre's care was poor and that she was P's main source of support.

Issues

1. Whether the Settlement Agreement required the children to obtain Z's consent before placing P in an Assisted Living Facility, and whether it should be enforced.
2. Whether the children or Z were the more appropriate deputies for P's personal welfare, property and affairs.
3. What access Z should have to P.

Holding

The High Court allowed the children's appeal in DCA 121 and dismissed Z's appeal in DCA 123, so X and Y remained joint deputies for P's personal welfare, property and affairs. It ordered a visiting schedule giving Z set days and limited overnight access, and ordered each party to bear its own costs.

Reasoning

No clause of the Settlement Agreement expressly required the children to get Z's consent before placing P in an Assisted Living Facility, and no such duty could be implied; the clauses only obliged the parties to encourage P to stay in one. The children had not breached it, and the court held the agreement was a binding contract that should be enforced. The court also considered its terms to be in P's best interests.

The parties' relationship had broken down, so the question was who was the more suitable deputy. For property and affairs, the court pointed to bank records showing $200,000 moving from P's account to Z's in 2022, after his dementia diagnosis, and to her agreement in the settlement to repay $90,000 of it. Whatever her motives, the children were P's heirs, and they were better placed to manage his property. For personal welfare, the care centre appeared to suit P's needs. The court found that Z had been intentionally encouraging P to ignore medical advice and the centre's rules, had criticised the staff without supporting evidence, and seemed to have set P against his children, so she should not remain a co-deputy.

The court accepted that Z had P's interests at heart and that he appeared to enjoy her company, so continued visits were in his best interests. It set out visiting days for each side, limited Z's overnight access to the first and third weeks of each month and to times when P was well, and allowed either side to visit on days the other could not.

From the judgment