MENTAL CAPACITY ACT 2005
IN THE MATTER OF CS
42-49 High Holborn London WC1V 6NP |
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B e f o r e :
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THE PUBLIC GUARDIAN |
Applicant |
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- and - |
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MARVIN |
Respondent |
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MS in person
Hearing date: 16 September 2014
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Crown Copyright ©
Senior Judge Lush:
The background
(a) his son, Marvin, to be the sole attorney; and(b) MM's elder son to be the replacement attorney.
The application
(a) revoking both LPAs, and(b) inviting a member of the panel of deputies to apply to be appointed as CS's deputy for property and affairs.
(a) directing the immediate suspension of the LPA for health and welfare, and(b) freezing CS's savings account with Santander.
(a) concerns had been raised in January 2014 that the attorney, Marvin, had delegated his powers to his mother, MM, and that she was living off CS's income;(b) there was also concern that, according to the Land Registry, the registered proprietors of CS's house in Surrey were MM and her elder son;
(c) the OPG had already investigated MM in relation to her conduct as the attorney for CS's wife, but the investigation had come to a halt when CS's wife died;
(d) MM would not allow social workers from the London Borough of Sutton into the house to investigate various safeguarding concerns; and
(e) a Court of Protection General Visitor (Barbara Joyce) had visited CS on 4 March 2014 and was of the opinion that he lacked capacity to suspend or revoke the LPAs.
(a) the OPG serve a copy of the application and witness statement on the respondent, Marvin, by 23 May;(b) the respondent file and serve a response by 13 June; and
(c) the matter be referred back to a judge on or after 16 June 2014.
The attorney's response
"That the suspension of the LPA for health and welfare granted in the interim order of Senior Judge Lush dated 14 May 2014 be lifted.An order under paragraph 22(4)(b) Mental Capacity Act 2005 directing the revocation and cancellation of the registered property and affairs LPA.
An order directing that a member of the panel of deputies be invited to make an application for appointment of deputy to manage CS's financial affairs jointly with Marvin."
"I realise that I should have taken further advice about my role as attorney and what actions I should and should not have been doing. For this I am extremely sorry. I have acted in the way I did believing that it was in CS's best interests. Whilst I failed to keep full receipts of the expenditure, the money was used towards the upkeep of the family home in the same way as CS acted before he lost mental capacity and it was necessary for me to act as attorney.As I now appreciate that my actions have been in excess of my powers as attorney, I believe that it would be in CS's best interests for an independent deputy to be appointed. I would, however, prefer to remain involved and my preferred outcome would be a joint appointment with a panel deputy to manage the financial affairs of CS. However, should the court not be minded to allow this, I would not object to the appointment of a panel deputy to act on their own."
(a) the Public Guardian file and serve a response to Marvin's witness statement by 22 August;(b) any further evidence be filed and served by 5 September; and
(c) the matter be listed for an attended hearing on 16 September 2014.
Further evidence and submissions
(a) the Public Guardian agrees that the property and affairs LPA should be revoked;
(b) it is for the court to decide who should be appointed as CS's deputy for property and affairs;
(c) a deputyship order would provide greater safeguards than an LPA because (i) a security bond would be required and (ii) accounts would have to be submitted annually to the OPG; and
(d) specific directions should be given to protect CS's beneficial interest in the family home and a restriction should be entered on the proprietorship register at the Land Registry recording that he is the sole beneficial owner of the property.
(a) in her witness statement "MM had said that she had "fashioned a 'onesie' so that a small padlock could be used to stop it from being unzipped. The padlock was only used for a few weeks." The approach adopted by MM was certainly unusual and a cause of concern to the local authority social services."
(b) MM had also stated in her witness statement that: "The family has lost all trust with Social Services and I am scared to let them into the house as I am worried that they will try to take CS away as they seem to be determined to move him into a care home."
(c) Marvin, the attorney, should be making the decisions and should not be delegating this function to his mother.
(d) in his witness statement Marvin had suggested that if the LPA for health and welfare is revoked, the local authority "will take control and the family will have no say in CS's care." Rachel Bloore said that this was simply not true and referred to several passages in the Mental Capacity Act Code of Practice relating to the duty to consult.
"Having considered MM's and Marvin's witness statements, the Public Guardian is concerned that CS's health and welfare LPA may be used to prevent him from accessing services and care support from his local authority social services which may well be in his best interests but at odds with what his family want for him. If the court decides to restore to Marvin the power to make health and welfare decisions, he must understand his responsibilities as an attorney and that the actions and decisions taken on behalf of CS must comply with the Code of Practice. In addition, they must be decisions taken solely in CS's best interests, having consulted with the relevant people - professionals and family members – and having considered all the options available.However, it is not for the Public Guardian to say whether an act done or decision made by any person as a health and welfare attorney on behalf of an incapacitated person is in their best interests or not. The Public Guardian's statutory duty is to investigate concerns about the actions of attorneys when they are brought to his attention. If he finds that the concerns are without foundation, then no further action is taken. Unfortunately, in this instance, the Public Guardian has seen nothing in the witness statements of Marvin or MM which allay his concerns that Marvin may still not be fully aware of his role and responsibilities as CS's attorney for health and welfare.
Therefore, the Public Guardian's position is that it is for the court to direct whether Marvin has, as attorney for CS, acted in his best interests regarding his health and personal welfare and if Marvin should continue in this role. If the court decides to revoke the health and welfare LPA, the Public Guardian suggests that the court would want to consider if there is any need for the appointment of a deputy for health and welfare."
"Please find attached a copy of CS's community care assessment and support plan and a copy of the carer's assessment for MM.You will note on reading the attached assessments that there has been a considerable improvement in the care received by CS from MM and the family as a whole. Positive feedback has also been received from CS's community psychiatric nurse and admiral nurse (a mental health nurse that specialises in dementia), which has been recorded in the assessments.
As a result of this improvement I can confirm that my client is satisfied that it would be in CS's best interests for the health and welfare LPA to remain in place."
The hearing
(a) Gemma Hopper and Nadia Dhillon of the OPG; and
(b) Marvin and MM, who were accompanied by Rosemary Yablon of the Personal Support Unit ('PSU'). The PSU is a charity which provides trained volunteers who give free, independent assistance to people facing proceedings without legal representation in civil and family courts and tribunals. McMillan Williams Solicitors had come to an agreement with Marvin that they would not represent him at the hearing because of the costs involved.
The property and affairs deputyship
(a) Mental Health Act 1983, Part VII; and
(b) Enduring Powers of Attorney Act 1985.
"The judge may, with respect to the property and affairs of a patient, do or secure the doing of all such things as appear necessary or expedient -(a) for the maintenance or other benefit of the patient;(b) for the maintenance or other benefit of members of the patient's family;(c) for making provision for other persons for whom or which the patient might be expected to provide if he were not mentally disordered; or(d) otherwise for administering the patient's affairs."
"Subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may (without obtaining any consent) act under the power so as to benefit himself or other persons than the donor to the following extent but no further, that is to say:(a) he may so act in relation to himself or in relation to any other person if the donor might be expected to provide for his or that person's needs respectively; and(b) he may do whatever the donor might be expected to do to meet those needs."
"The deputies may make provision for the needs of anyone who is related to or connected with CS if he provided for, or might be expected to provide for, that person's needs by doing whatever he did, or might reasonably be expected to do, to meet those needs."
(a) to understand or take advice about his role and responsibilities as an attorney; and
(b) to keep accounts and other financial records.
(a) his co-deputy is a solicitor and will be in a position to advise him on his duties and the scope of his authority;
(b) the appointment is joint, which means that both deputies must act together in all transactions and cannot act independently; and
(c) the order appointing them specifically requires the deputies to keep statements, vouchers, receipts and other financial records and to submit a report to the Public Guardian as and when required.
(a) he has not abused CS in any way;
(b) there is no need for an ongoing investigation of his dealings as attorney;
(c) there has been no misappropriation and, accordingly, there is no need for legal proceedings to be brought against him to recover funds that have been misappropriated;
(d) there is no obvious conflict of interest; and
(e) there is no suggestion that he is taking advantage of his father by undue influence.
(a) section 1(6) of the Mental Capacity Act 2005, which states that "before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action";
(b) the Parliamentary Assembly of the Council of Europe's resolution 1859, made on 25 January 2012, on protecting human rights and dignity by respecting the previously expressed wishes of patients; and
(c) Article 12.4 of the United Nations Convention on the Rights of Persons with Disabilities, which requires that "measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, [and] are proportional and tailored to the person's circumstances."
The LPA for health and welfare
(a) the donor lacks capacity to revoke the LPA himself; and
(b) the attorney has behaved, is behaving or proposes to behave in a way that contravenes his authority or is not in the donor's best interests.
"In the absence of appropriate safeguards, the revocation by the court of an LPA, which a donor executed when they had capacity and in which they chose a family member to be their attorney, would be a violation of their Article 8 rights. For this reason the Mental Capacity Act has been drafted in a labyrinthine manner to ensure that any decision by the court to revoke an LPA cannot be taken lightly."
"The diagnostic test is met in that a diagnosis of dementia exists. Moving on to the second stage of the capacity test:CS was unable to understand the concept of the LPA.
He was unable to retain information.
He was unable to use and weight up information.
He is able to communicate verbally but his speech and sentence formation is erratic.
I conclude that it is my professional opinion that CS does not have mental capacity in relation to the decision about revoking or suspending the LPA."
"The Public Guardian is concerned that CS's health and welfare LPA may be used to prevent him from accessing services and care support from his local authority social services which may well be in his best interests but at odds with what his family want for him. If the court decides to restore to Marvin the power to make health and welfare decisions, he must understand his responsibilities as an attorney and that the actions and decisions taken on behalf of CS must comply with the Code of Practice."
"Unfortunately, in this instance, the Public Guardian has seen nothing in the COP24 statements of Marvin or MM which allay his concerns that Marvin may still not be fully aware of his role and responsibilities as CS's attorney for health and welfare."
(a) "I realise I should have taken further advice about my role as attorney and what actions I should and should not have been doing;" and
(b) "For this I am extremely sorry."
(a) "there has been a considerable improvement in the care received by CS from MM and the family as a whole;"
(b) "positive feedback has also been received from CS's community psychiatric nurse and admiral nurse"; and
(c) the local authority "is satisfied that it would be in CS's interests for the health and welfare LPA to remain in place."