England and Wales Court of Protection Decisions

COURT OF PROTECTION
MENTAL CAPACITY ACT 2005

		First Avenue House 42-49 High Holborn, London WC1V 6NP
		3 June 2014

Senior Judge Lush:

1. This is an application by the Public Guardian to revoke and cancel the registration of a Lasting Power of Attorney ('LPA') for property and financial affairs.

Family background

2. OW is 95 years old.
3. She trained as a nurse and met her husband in Egypt during the Second World War. They married in 1947. He died in 1992.
4. She has two children:

(a) a daughter, who is 65 and lives in London; and

(b) a son, JW, who is 62 and lives in Brighton.

5. Until September 2011 OW lived with her son and his partner in rented flat in Cornwall Gardens, Brighton.
6. On 6 September 2011 she was blown over by a gust of wind and fractured her pelvis and sustained a subdural haematoma.
7. She was admitted to the Royal Sussex County Hospital, where she was an in-patient for just over two months.
8. On 17 November 2011 she was discharged to Ireland Lodge care home in Brighton and on 22 January 2013 she was transferred to Grosvenor Lodge, a care home in Hove.
9. On 5 February 2013 James Cadle, a social worker with Brighton and Hove NHS Dementia Services, carried out an assessment to establish whether OW was eligible for NHS Continuing Healthcare, which is free care outside of hospital, arranged and funded by the NHS, but is only available to people who have a complex medical condition and substantial ongoing care needs. He came to the following conclusion:

"OW has not scored highly enough on the checklist. At present her care is neither significantly complex or unpredictable. Additionally to ensure a thorough assessment I have spoken with Ireland Lodge as OW has not been at Grosvenor Lodge for very long (she moved there on 22/01/2013). OW was at Ireland Lodge for a significant period of time. I went through my findings with a staff member at Ireland Lodge whom knew OW and they agreed with my findings as a good representation of OW's needs and shared the view that she would not be eligible for NHS Funded Care."

10. On 24 April 2014 OW was admitted to hospital with pneumonia and, if she survives, she will be discharged to an EMI (elderly mentally infirm) nursing home in due course.
11. Her assets amount to £34,700. She has £26,300 invested with Scottish Widows and £8,400 with Invesco.
12. Her liabilities are unpaid care home fees totalling £77,119.32.
13. Her income, from her state benefits and a widow's pension from her late husband's employer, is almost exactly £15,000 a year.

The Lasting Power of Attorney

14. On 20 August 2011 - two or three weeks before her accident - OW executed a Lasting Power of Attorney for property and financial affairs, in which she:

(a) appointed her son, JW, to be the sole attorney; and

(b) appointed her daughter to be the replacement attorney.

15. She named nobody who was to be notified when an application was made to register the LPA, as a result of which there had to be two certificate providers to assess her capacity to create the LPA. Both certificate providers were friends who had known her for twenty or thirty years.
16. An application was made to the Office of the Public Guardian ('OPG') to register the LPA and it was registered on 1 February 2012.

Concerns about the attorney's conduct

17. In June 2013 Brighton and Hove City Council contacted the OPG and expressed its concern about the way in which JW was handling his mother's finances.
18. The Council had carried out a Safeguarding Alert and in a report dated 11 June 2013 stated that:

"An alert was raised by the manager of Ireland Lodge in October 2012 as OW was at that point in arrears of £33,000 to Ireland Lodge, and was not receiving her personal allowance in full. Her family had not engaged with a financial assessment and there were concerns that the family may be using funds for their own use. The family have reported EPA/LPA but had not provided any evidence of this.

A level 2 safeguarding investigation took place and whilst some limited email contact from the family took place, they did not engage in the process. The outcome of the investigation was therefore inconclusive, and the protection plan was that Finance were to start legal proceedings with a view to claiming back monies owed and to ensure OW receives her full allowance.

The current alert raises concerns, following a review at Grosvenor Lodge, that OW continues not to receive her personal allowance, and monies have not been paid from her funds towards her care provision."

19. On hearing of these concerns, the OPG formally opened an investigation and sent a Court of Protection Visitor to see OW. In her report dated 15 August 2013, the Visitor, Barbara Joyce, said:

"The home manager told me that JW informed her that he refuses to cooperate with a financial assessment as staff at the previous care home had not applied for continuing healthcare funding for his mother. I was of the opinion that she would not meet the criteria and the home manager agreed with me."

"I do not consider that the attorney is acting in the donor's best interests by evading a financial assessment on her behalf. It is certainly not in her best interest to deprive her of her personal allowance. JW has been evasive and difficult to contact. He has refused to disclose his home location to social services and the care home."

20. Barbara Joyce, who is a qualified social worker, carried out an assessment of OW's capacity and concluded that:

"It is my professional opinion that OW does not have mental capacity in relation to the decision about revoking or suspending the LPA."

The application

21. On 7 January 2014 the Public Guardian applied to the Court of Protection for two orders:

"An order under section 22(4)(b) of the Mental Capacity Act 2005 for the revocation and cancellation of the registered LPA made by OW; and

An order directing that a member of the panel of deputies be approached and invited to seek to act as deputy to manage OW's property and affairs."

22. The application was accompanied by a witness statement made by Sonya Hanson, an investigations officer with the OPG, who reiterated the concerns expressed by Brighton and Hove City Council and in the Visitor's report, and set out her own findings from an examination of OW's bank statements, which are described in detail in paragraphs 25 to 29 below.
23. On 18 February 2014 JW completed an acknowledgment of service, in which he objected to the Public Guardian's application. It was accompanied by a witness statement in which he said that he had refused to complete a financial assessment form or to pay the care home fees because he believed that his mother was entitled to NHS Continuing Healthcare.
24. On 19 March 2014 I made an order setting out a timetable for the filing of further submissions and evidence, and listing the matter for hearing on Wednesday 21 May 2014.

The Public Guardian's position statement

25. On 8 April 2014 Sonya Hanson filed a position statement on behalf of the Public Guardian, which contained two tables. Table 1 was a schedule of direct debit and standing order payments from OW's account in respect of the rent and other outgoings at the flat in which she had lived with her son and his partner. These covered the period from January 2012 until March 2013, when JW and his partner vacated the premises.

Start date	End date	Payee	Monthly amount
16.01.2012	14.02.2013	Landlords (rent)	£483
26.01.2012	Ongoing	Truly Local Advertising	Various, e.g. £168, £84
02.02.2012	04.03.2013	Virgin Media	Various, e.g. £116.07, £98.56
10.02.2012	10.04.2013	Npower	Various, e.g. £240, £59

26. Commenting on this expenditure, Sonya Hanson said:

"In his witness statement, JW states that OW lived at Cornwall Gardens with himself and his partner for 10 years prior to her admittance to hospital. The Public Guardian recognises that, whilst it would have been reasonable to expect OW to contribute towards their combined household expenses, the evidence suggests that, in fact, she paid the entirety of the rent and utility bills. Furthermore the evidence shows that OW has resided in a care home since 17th November 2011. However JW was using her money to pay the rent and utility bills at Cornwall Gardens until February/April 2013."

27. Table 2 contained a list of other payments from OW's account which Sonya Hanson had queried:

Date	Payee	Amount
16.02.2012	Paypal	100.66
05.03.2012	DVLA	118.25
28.09.2012	Loan to OW's daughter	3,000.00
03.10.2012	DVLA	137.50
12.10.2013	JW	500.00
26.02.2013	James Waste LLP	216.00
11.03.2013	JW	500.00
13.03.2013	James Waste LLP	216.00
13.03.2013	JW	500.00
05.04.2013	Richer Sounds plc	409.94
15.04.2013	DVLA	260.00
		£5,958.35

28. In respect of these payments, Ms Hanson said:

"The bank statements show that JW has used OW's income to subsidise his lifestyle, i.e. rent and utility payments, advertising, business expenses moving costs etc. Furthermore JW loaned himself £1,500 and his sister £3,000 from OW's funds. JW stated that some of this money was used for expenses incurred by himself on OW's behalf. However he has failed to provide any receipts to support his usage of OW's funds."

"OW receives approximately £1,216.59 per month from her Attendance Allowance and state/occupational pensions. The bank statements supplied by JW run from 13th January 2012 to the 11th July 2013. Theoretically OW should have accrued approximately £21,898.62 over this 18 month period, as no care home fees have been paid and minimum personal allowance received. However, the start balance on this account is £6,197.50 and the end balance is £5,266.81. No transfers to other accounts are shown on the bank statements, i.e. savings accounts etc."

29. The position statement concluded as follows:

"It is the Public Guardian's opinion therefore that JW is failing to act in OW's best interests. Whilst the Public Guardian acknowledges JW's dispute with Brighton and Hove City Council over OW's care and Continuing Healthcare funding, it does not alter the fact that JW has not only failed to pay OW's care home fees but has allowed a debt of £77,119.32 to accrue. This has placed OW in a very vulnerable position and is currently jeopardising her place at Grosvenor Lodge.

Furthermore by loaning himself money to support his business interests and subsidise his income JW has placed himself in a position where he can be accused of self dealing.

The Public Guardian's position has therefore not changed. We continue to request the revocation of the LPA and ask that a panel deputy be appointed to manage OW's property and financial affairs. The OPG would see the appointment of a panel deputy as being in OW's best interests."

30. JW responded in a witness statement on 7 May 2014 and said it had never been entirely clear whether OW would remain permanently in a care home or whether she would return to live with him and his partner in Cornwall Gardens. Accordingly, he had continued to pay the rent from her funds in order to retain the flat for her.
31. The hearing took place on Wednesday 21 May 2014 and was attended by:

(a) Marion Bowgen on behalf of the Public Guardian; and

(b) JW, his partner, and his sister.

The law relating to the revocation of an LPA

32. Section 22 of the Mental Capacity Act 2005 describes the circumstances in which the Court of Protection can revoke an LPA. This section refers to the donor of an LPA as 'P' and the attorney appointed by the donor as 'the donee'.
33. Section 22(3)(b) states the grounds on which the court can revoke an LPA. It says:

"Subsection (4) applies if the court is satisfied -

(a) ….

(b) that the donee (or, if more than one, any of them) of a lasting power of attorney –

(i) has behaved, or is behaving, in a way that contravenes his authority or is not in P's best interests, or

(ii) proposes to behave in a way that would contravene his authority or would not be in P's best interests."

34. In these circumstances, section 22(4) provides that:

"The court may –

(a) direct that an instrument purporting to create the lasting power of attorney is not to be registered, or

(b) if P lacks capacity to do so, revoke the instrument or the lasting power of attorney."

35. In Re Harcourt [2013] COPLR 69, I discussed in some detail:

(a) the Public Guardian's powers in relation to investigations regarding LPAs;

(b) determining what is in P's best interests;

(c) the law regarding a donee's compliance with an OPG investigation and court orders; and

(d) the rights of both P and the donee under Article 8 of the European Convention on Human Rights and Fundamental Freedoms (the right to respect for private and family life).

36. The judgment in Re Harcourt can be found on the OPG's website and there is no need for me to cover the same ground here.

Decision

37. The Public Guardian had four main areas of concern regarding JW's conduct:

(a) his failure to engage with Brighton and Hove City Council and complete a financial assessment;

(b) his failure to pay the care home fees, thereby allowing a debt of over £77,000 to accumulate;

(c) his failure to provide OW with a personal allowance (which was resolved as a result of the OPG's investigation); and

(d) his use of his mother's funds to subsidise his own and his partner's lifestyle.

38. JW's reasons for failing to complete a financial assessment and to pay the care home fees were summarised in a letter he wrote to Sonya Hanson on 19 August 2013, in which he said:

"As the reason for this investigation stems entirely from a dispute I have been having with first the NHS, and now the social services within Brighton and Hove City Council, regarding assessments of my mother's condition and welfare, which have never been carried out properly, and the only lever I have in trying to get them to do their jobs properly is by withholding payment for the care my mother receives, I was disappointed to find that you actually seem to be doing this on their behalf, and that any information I give you will surely be passed to them. For this reason, while I shall give you some of the information you will require, it will be in general terms and I shall be seeking legal advice."

39. JW's argument that 'the only lever' he had was not to pay care home fees is totally unacceptable.
40. It is the Public Guardian's view, with which I fully agree, that in a dispute regarding NHS Continuing Healthcare, an attorney acting on behalf of an incapacitated donor has a duty to pursue all the standard dispute resolution procedures and, if need be, have the matter referred to the Parliamentary and Health Service Ombudsman. The Ombudsman's role is to investigate complaints that individuals have been treated unfairly or have received poor service from government departments and other public organisations, including the NHS. Whilst these attempts to resolve the dispute are taking place, the attorney should continue to pay the donor's care fees. If it transpires that the donor qualifies for NHS Continuing Healthcare, and has been eligible for some time, the NHS will refund any overpayment of care fees.
41. JW did not give a satisfactory explanation for his refusal to provide a full account to the OPG, and his suggestion that the OPG was acting as the agent of Brighton and Hove City Council in order to obtain financial information was both inaccurate and unwarranted.
42. In his evidence at the hearing, it became apparent JW had never taken formal legal advice about his mother's entitlement to NHS Continuing Healthcare, other than having a telephone conversation with someone around the corner, who specialised in such matters, who had told him not to complete the financial assessment form until he had received a satisfactory response from Brighton and Hove City Council and the NHS.
43. As frequently happens in cases of this kind, failure to pay care home fees, failure to provide a personal allowance, and failure to produce financial information to the statutory authorities, are concomitant with an actual misappropriation of funds.
44. The facts speak for themselves. For eighteen months, from 6 September 2011, when OW was admitted to hospital, until some time in March 2013, when JW and his partner finally moved out of Cornwall Gardens, JW used OW's funds to pay the rent and all the other outgoings, even though OW was not living there.
45. JW's argument that there was a possibility that she might return, although not unreasonable in itself, highlights the fact that there was a conflict between his interests and OW's during that period, which he handled poorly. Any vestige of integrity is utterly eroded, however, by the use of his mother's funds to pay the excise duty on his own vehicle and to advertise his business in various local newspapers.
46. JW's management of his mother's finances has spectacularly backfired. I assume that his intention was to salvage as much as he could of his and his sister's potential inheritance, but their mother's liabilities now exceed her assets by £42,419 and her estate is technically insolvent.
47. If JW had managed his mother's finances competently, when her assets had been depleted to £23,250, she would have ceased to be fully self-funding in respect of her care costs and would have become eligible for support from the Council, and when her capital was below the £14,250 threshold, she would have become entitled to maximum support.
48. Accordingly, I am satisfied that JW has behaved in a way that is not in his mother's best interests and, as OW lacks capacity to revoke the LPA herself, I shall revoke it for her.
49. In his application to the court, the Public Guardian sought two orders. The first was for the revocation of the LPA and the second was for the appointment of a panel deputy.
50. In the power of attorney OW appointed JW to be the attorney and her daughter to be the replacement attorney.
51. The circumstances in which a replacement attorney can replace an original attorney are confined to the events listed in section 13(6) of the Mental Capacity Act 2005, which says that:

"The events are:

(a) the disclaimer of the appointment by the donee in accordance with such requirements as may be prescribed for the purposes of this section in regulations made by the Lord Chancellor,

(b) subject to subsections (8) and (9) the death or bankruptcy of the donee or, if the donee is a trust corporation, its winding-up or dissolution,

(c) subject to subsection (11) the dissolution or annulment of a marriage or civil partnership between the donor and the donee,

(d) the lack of capacity of the donee."

52. The court's revocation of the appointment of a donee is not a prescribed event for the purposes of section 13(6) of the Act and, in this case, the replacement attorney cannot replace JW as the attorney under the LPA.
53. I could, of course, appoint OW's daughter to be her deputy for property and affairs but, to some extent, her daughter was aware of and complicit in JW's actions and supported him throughout his objection to the Public Guardian's investigation and application to the court.
54. OW's financial affairs are in disorder because of JW's misconduct and they need to be put in order as soon as possible. I believe that a panel deputy would be better placed than OW's daughter to achieve this, even though the appointment of her daughter would be a less restrictive option and more compatible with OW's rights under Article 8 of the European Convention on Human Rights.
55. Accordingly, I allow the Public Guardian's application for the appointment of a panel deputy.
56. Maybe, when the panel deputy has sorted out OW's finances and set them on an even keel, they will consider standing down in favour of her daughter, if they believe that such a course of action would be in her best interests.