England and Wales Court of Protection Decisions

COURT OF PROTECTION
MENTAL CAPACITY ACT 2005

		First Avenue House 42-49 High Holborn, London WC1V 6NP
		10 April 2014

Senior Judge Lush:

Rule 89

1. This is an application to reconsider an order I made on 27 September 2013:

(a) suspending the applicants from acting as MRJ's attorneys under a Lasting Power of Attorney ('LPA') for property and financial affairs until further order; and

(b) appointing the authorised officer of Suffolk County Council as MRJ's interim deputy with instructions to investigate the applicants' management of her finances.

2. I made the order on the papers, without holding an attended hearing, because on the evidence then available I considered it to be in MRJ's best interests that her financial affairs should be brought under proper control immediately.
3. Rule 89 of the Court of Protection Rules 2007 provides that, where the court makes an order without a hearing, anyone who is affected by it may apply within 21 days for the order to be reconsidered.
4. The purpose of this rule and way in which it operates were described by Her Honour Judge Hazel Marshall QC Re S & S [2008] COPLR Con Vol 1074 in the following terms.

[61] … Such a reconsideration is not an appeal. The processes in the Court of Protection are intended to give the court wide flexibility to reach a decision quickly, conveniently and cost effectively where it can, whilst preserving a proper opportunity for those affected by its orders to have their views taken into account in full argument if necessary. To that end, on receiving an application, the court can make a decision on the papers, or direct a full hearing, or make any order as to how the application can best be dealt with. This will often lead to a speedy decision made solely on paper which everyone is content to accept, but any party still has the right to ask for a reconsideration.

[62] If this occurs, the court should approach the matter as if making the decision afresh, not on the basis that the question is whether there is a justifiable attack on the first order. The party making the application has not had a proper opportunity to be heard, and should be allowed one without feeling that s/he suffers from the disadvantage of having been placed in the position of an appellant by an order made without full consideration of his points or his views.

The background

5. MRJ was born in 1932.
6. She has moderately advanced dementia, the onset of which was first noticed in 2007, although it was not formally diagnosed until 30 March 2009.
7. She lives in Suffolk and has resided in a residential care home since 23 December 2013. Before that she lived in sheltered accommodation.
8. She has two daughters: JT, with whom she has daily contact, and JW, with whom she has had very little contact.
9. JT was born in 1962 and has two sons, one of whom, KT, was born in 1984 and lives with her in Suffolk.
10. On 3 March 2010 MRJ executed two LPAs - one for property and financial affairs and the other for health and welfare - in which she appointed JT and KT jointly and severally to be her attorneys.
11. The attorneys applied to the Office of the Public Guardian ('OPG') to register the LPAs and the LPA for health and welfare was registered on 11 June 2010.
12. For reasons that need not concern us, there were technical defects with the LPA for property and financial affairs, which prevented it from being registered until 5 September 2013 – three weeks before the order that I have been asked to reconsider.

The Council's application

13. For quite some time Suffolk County Council ('the Council') had been concerned that JT and KT were abusing MRJ both emotionally and financially.
14. MRJ has no capital but receives an income of about £245 a week from two sources:

(a) state benefits (retirement pension £128.21, attendance allowance £77.46, and pension credit £18.00) totalling £223.67 per week; and

(b) an occupational pension of £90.59 per month from Invensys.

15. In order to safeguard her state benefits the Council applied to the Department for Work and Pensions to be appointed as her 'appointee' for the purpose of claiming, receiving and applying her benefits.
16. On 1 June 2012 the Secretary of State for Work and Pensions appointed the Council as MRJ's appointee pursuant to regulation 33 of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968).
17. On 4 December 2012 the Council applied to the Court of Protection for what it described as a 'one-off order', which would give it the authority also to manage and receive MRJ's occupational pension from Invensys.
18. The Council subsequently realised that such an order would not protect MRJ's other assets – in particular, her bank account - and on 8 April 2013 it made an application to be appointed as her deputy for property and affairs.

The Public Guardian's application

19. Because for technical reasons the Public Guardian was unable to register the LPA for property and financial affairs, he had no authority to intervene in these aspects of MRJ's private life until the LPA had been registered.
20. He did, however, have authority under section 58(1)(h) of the Mental Capacity Act 2005 to deal with representations (including complaints) about the way in which JT and KT were exercising their powers under the LPA for health and welfare.
21. Having received a complaint about the attorneys' conduct, on 21 May 2013 the Public Guardian applied to the court for an order under section 22(4)(b) of the Act revoking the LPA for health and welfare and directing him to cancel its registration.
22. The application was accompanied by a witness statement made by Sonya Hanson, an investigations officer at the OPG's headquarters in Birmingham, who said that:

(a) The Council's solicitor had raised concerns with the OPG in October 2012.

(b) Staff from the housing association which ran MRJ's sheltered accommodation had witnessed the attorneys, KT and JT, verbally berating, intimidating and harassing MRJ.

(c) The Council had produced a 181 page chronology of incidents that had occurred from 11 May 2010 to 15 October 2012.

(d) On 15 February 2011 a judge at Lowestoft County Court issued an injunction requiring KT to vacate MRJ's property and not to approach within 100 yards of it, and forbidding him from using violence or threatening words or behaviour or foul or abusive language towards MRJ's carers.

(e) Christine Gaukroger, a Court of Protection General Visitor, visited MRJ on 21 December 2012, and concluded her report by saying: "In my view KT is significantly and inappropriately over-involved in the donor's life and this impacts on her abilities to socialise with a peer group, participate in activities of her choice, be at ease with her surroundings, threatening her tenancy and possibly affecting her health."

(f) On 18 April 2013 JT had picked up and thrown a waste paper bin at MRJ and screamed, "You're not my mother. My mother is dead."

(g) In a letter dated 8 December 2011 MRJ's consultant psychiatrist, Dr Neil Ashford, expressed the opinion that she lacks the capacity to revoke the LPA. This letter is considered in greater detail in paragraphs 46 and 47 below.

Orders

23. On 28 May 2013 I made an order requiring:

(a) the OPG to serve the papers on the attorneys within 7 days;

(b) the attorneys to file their response within 21 days of being served; and

(c) the matter to be referred back to me on the first available date after 15 July 2013.

24. There was no response from the attorneys and on 25 September 2013 I made an order revoking the LPA for health and welfare and directing the Public Guardian to cancel its registration.
25. Because the LPA for property and financial affairs had eventually been registered on 5 September 2013, and because I had reason to believe that JT and KT's misconduct was not confined solely to matters regarding MRJ's health and welfare, on 27 September 2013, I made a further order:

(a) suspending the attorneys from acting under the LPA for property and financial affairs until further order;

(b) appointing the authorised officer of Suffolk County Council to act as interim deputy for property and affairs; and

(c) authorising the interim deputy to investigate MRJ's assets and liabilities and any dealings with her funds by JT and KT and to report back to the court as soon as reasonably practicable.

26. None of these orders was made at an attended hearing. Both of the orders made in September 2013 were decided 'on the papers' and were, therefore, susceptible to an application for reconsideration pursuant to rule 89.

The application for reconsideration

27. On 18 October 2013 JT submitted an application, in which she sought the following order:

"That the order made on 27th September by Senior Judge Lush of this court is discharged and that the powers of attorney are returned to myself and KT along with all financial powers including MRJ's pensions which Suffolk County Council has had deputyship of and financial documents and any finances they currently have."

28. She set out the following grounds for seeking the order:

"I am asking the court to discharge the order made and that I have never used MRJ's money for my own use. MRJ had Sky Television and Broadband in her home before Suffolk County Council began their involvement. MRJ uses the Broadband with my help to purchase Christmas presents on sites which we have asked family members to set up gift lists on. MRJ asked us to disconnect her Sky TV as she felt she no longer watched her television as much. Along with KT, I carry out 45 hours a week care on top of MRJ's 5 hours a week paid for by the local authority. I feel that the local authority had constructed this case for their own benefit and gain and therefore I feel that I have been branded a thief and an abuser and this is something I am not. I feel that the local authority has misinterpreted the family dynamic that my family have. I have seen the destruction this has done to the family and especially to MRJ. She now no longer trusts anyone in her home and if they go to the toilet she follows them. This is due to the fact that Suffolk County Council and [the Housing Association] have been telling her that they will sell all of her property and never let her see her family again. I am asking the court to discharge the order on the grounds I have set out above."

29. KT filed a virtually identical application on the same day.
30. On 27 January 2014 I made a directions order:

(a) requiring an officer of the court to send copies of the applications for reconsideration to the respondents by 7 February 2014;

(b) requiring the respondents to file a response by 28 February 2014;

(c) permitting the applicants to file any further evidence or submissions upon which they wished to rely by 21 March 2014; and

(d) listing the matter for hearing on 3 April 2014.

Chonde Nkowani's witness statement

31. Chonde Nkowani qualified as a social worker at the University of Zambia in 1983 and has a master's degree in social work from the University of Michigan. She has been working for Suffolk County Council since 2002 and has been progressively promoted to the posts of senior practitioner and cluster manager.
32. On 24 February 2014 she made a witness statement, in which she described the outcome of the Council's investigation into MRJ's assets and liabilities, and the dealings with her funds by her daughter and grandson.
33. Her statement contained a description of how KT had been operating a 'thinkmoney' online banking account, which he had set up in MRJ's name. Although it is fairly lengthy, I shall quote it in full because it is a salient reminder of how easy it is for someone unscrupulous, who is internet savvy, to dupe an elderly person, who is clueless about such matters.

"Having taken over the management of MRJ's finances it came to light that there were several anomalies with regards to MRJ's accounts and that there needed to be further investigation. The matter was referred to the police.

In particular the investigation into MRJ's Think Money Account revealed that over a period of six months, January 2012 to May 2012 (the date at which Suffolk County Council obtained appointeeship for MRJ's benefits), KT had transferred £2,424 to himself or his company. The bank statements are attached to this statement.

MRJ's Think Money Account is an account that is designed for older people with dementia. All their income including benefits and pensions go into what is called a 'Salaries Account' and all direct debits for bills etc are set up from that account. This helps the customer to budget. Any remaining amount left in that account each week is automatically transferred to a 'Card Account', where the customer can use a debit card for purchases and cash withdrawals.

With reference to those bank statements it can be seen that KT set up a standing order of £80 per week to himself from MRJ's Salaries Account. From the historical statements that we have these payments went out on 03.01.12 and every week thereafter until Suffolk County Council obtained the appointeeship in June 2012. From that date it is notable that the standing order was 'bounced' to KT because there were insufficient funds in the account (because MRJ's state benefits were being managed in an account set up by Suffolk County Council Personal Finance to which KT did not have access). From June 2012 onwards the only money that KT had access to was MRJ's Invensys pension of about £90 per month.

The Card Account also shows regular payments for weekly grocery shopping from Tesco (an average is spent of £60 a week which is high for one person living alone). In January 2012 MRJ spent £298.58 on groceries from Tesco. There are regular payments from the Salaries Account to KT's company, KT, Sky TV and Broadband. From the Card Account, online purchases were made to Amazon, One.com (which is a web hosting company), British Gas (whilst MRJ was in very sheltered housing and not having to therefore pay for heating, electricity, etc.) and uniformdating.com. MRJ does not have a computer and has never had access to Broadband, although it appears this was being bought by her.

There are also numerous withdrawals from cash machines. KT has alleged to the police that these withdrawals he gave to MRJ at one time totalling £1,000 which she had in cash in her accommodation and [the Housing Association] were holding this for her. There is no record that [the Housing Association] were in receipt of £1,000. There is no evidence to support that MRJ had any of this cash as our main concern throughout was her continued lack of money to engage in activities, replace clothing, have a meal at the café, etc.

At the end of each week the residue from the Salaries Account was transferred to the Card Account. By reference to the statements a clear pattern emerges which is that the residue is transferred by 'FP' (Fast Payment by way of the Internet) from the Salaries Account to KT. For example on 23 January 2012 £140 was the residue left in the Card Account and this was then transferred by KT out of the Card Account into the Salaries Account and then transferred from the Salaries Account into KT's account and this happens each month. Each month there is very little left in the account. During the month of January 2012 (as with all the other months) the only cash that MRJ had for the entire month was £20.

During this period it is clear that neither KT nor JT had any legal authority for dealing with MRJ's financial affairs. Their LPA related to personal welfare only. MRJ lacked capacity to deal with her own financial affairs as Dr Ashford's report of 2011 makes plain, and which KT and JT had sight of. It appears that KT and JT exploited MRJ's lack of capacity and transferred the money from her Think Money Account largely for their own purposes.

KT was interviewed by the police under caution with a legal representative present on 7 January 2014. I attach a copy of the e-mail from Suffolk Constabulary confirming what took place. In essence KT was asked about the regular transfers of £80 a week that were being made from MRJ's account. KT told the police he transferred this money then withdrew it and gave it to MRJ who kept the cash in her flat. …

The police are awaiting further information from KT: copies of his own bank statements, which he has thus far failed to produce. They are currently contemplating future action."

The hearing

34. The hearing took place on Thursday, 3 April 2014 and was attended by:

• Lee Parkhill of counsel, and Jean Haslam and Chonde Nkowani of Suffolk County Council; and

• Marion Bowgen of the OPG.

35. JT and KT filed a witness statement on 20 March 2014 saying that they would be unable to attend the hearing due to KT's work commitments and JT's continuing ill health.

The law relating to the suspension and revocation of an LPA

36. The only reference in the Mental Capacity Act 2005 to the suspension of an attorney's authority to act under an LPA is in section 13, where subsections (9) and (10) refer to the effect of an interim bankruptcy restrictions order. The attorney's appointment is suspended for as long as the order has effect. This provision was extended by the Tribunals, Courts and Enforcement Act 2007 (Consequential Amendments) Order 2012, Schedule 2, Article 53(2) to include the suspension of the appointment of an attorney in respect of whom a debt relief order has been made under Part 7A of the Insolvency Act 1986.
37. Section 23(2)(a) of the Mental Capacity Act provides that the Court of Protection may give directions with respect to decisions which the attorney under an LPA has authority to make and which the donor lacks the capacity to make. Pursuant to this provision, the court may direct the attorney to make no decisions at all and thereby suspend his or her authority to act under the LPA.
38. The combined effect of subsections (3)(b) and (4)(b) of section 22 of the Act is that the court may revoke an LPA, if it is satisfied that:

(a) the attorney (or, if more than one, any of them) has behaved, or is behaving in a way that contravenes his authority or is not in the donor's best interests; and

(b) the donor lacks the capacity to revoke the LPA.

39. The use of the word 'may' in section 22(4)(b) means that revocation is not mandatory in these circumstances and that the court exercises a discretion when deciding whether or not to revoke an LPA. This discretion is subject to the provisions of the Act and, in particular, sections 1 (the principles) and section 4 (best interests).
40. Section 22(5) of the Act states that, if there is more than one attorney (as in this case), "the court may under subsection (4)(b) revoke the instrument or the lasting power of attorney so far as it relates to any of them." The effect of this is that, where attorneys have been appointed to act jointly and severally (as in this case), the court can revoke the appointment of just one of them. Thus, if I were minded to do so, I could revoke the appointment of KT but allow the LPA to remain in force with JT acting as the sole attorney.
41. Article 8 of the European Convention on Human Rights provides that:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

42. Resolution 1859, which was passed by the Parliamentary Assembly of the Council of Europe on 25 January 2012, refers to protecting human rights and dignity by respecting the previously expressed wishes of patients. It states that there is "general consensus based on Article 8 of the European Convention on Human Rights on the right to privacy that there can be no intervention affecting a person without his or her consent," and provides that "continuing powers of attorney should, in principle … be fully taken into account when properly validated and registered."
43. Unless such interference is warranted under Article 8.2, the revocation by the Court of Protection 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 8.1 right to respect for their private and family life: Re Harcourt [2013] COPLR 69. The same applies to an order under section 23(2)(a) of the Mental Capacity Act suspending the attorney's authority to act.

Decision

44. Although the application for reconsideration referred only to my order of 27 September 2013, it asked for 'the powers of attorney' (plural) to be returned to the applicants. So, for the avoidance of doubt, I confirm the order of 25 September 2013, in which I revoked the LPA for health and welfare.
45. I also confirm my order of 27 September 2013 suspending the authority of JT and KT to act under the LPA for property and financial affairs, and shall go one step further and formally revoke the LPA and appoint Suffolk County Council to act as substantive deputy.
46. I am satisfied that MRJ lacks the capacity to revoke the LPA for the reasons given by her consultant psychiatrist, Dr Neil Ashford, in his letter dated 8 December 2011. Having stated that MRJ has a dementia of moderate severity, he went on to comment:

"She fails the first test of capacity because she does not understand all the information pertinent to making these decisions. She fails the second test of capacity because, when given the relevant information, she is unable to retain it long enough to weigh it up and come to a decision. She fails the third test of capacity because her decision making processes are heavily influenced and distorted by her overwhelming sense of loyalty to JT and KT and her need to retain these important relationships for her."

47. Specifically, as regards the LPA, Dr Ashford said:

"However she didn't seem to understand about the presence or purpose of any existing powers of attorney. Nor was she aware of any potential wrong doing on the part of either JT or KT."

48. I am satisfied that JT and KT have acted in a way that has contravened their authority and has not been in MRJ's best interests.
49. There is considerably more material regarding the applicants' mismanagement of MRJ's financial affairs than was available to me when I made the original order suspending their authority on 27 September 2013, because we now have the result of the interim deputy's investigations.
50. I accept Chonde Nkowani's evidence regarding KT's operation of MRJ's thinkmoney online banking account, which is verified by the bank statements exhibited to her witness statement. KT callously and cynically manipulated this account to his own advantage.
51. By allowing MRJ to retain only a paltry sum of £20 a month for her own use and enjoyment, KT prevented her from socialising with others of her age group and participating in activities of her choice.
52. As regards JT, she has failed to act in MRJ's best interests by consistently allowing KT to abuse his grandmother both financially and emotionally and by colluding with him.
53. In my judgment, the revocation of the LPA is in MRJ's best interests. It is in accordance with the law, and it is a necessary and proportionate response for the prevention of crime and for the protection of MRJ's right to have her financial affairs managed competently, honestly and for her benefit.