England and Wales Court of Protection Decisions

		First Avenue House 42-49 High Holborn London WC1V 6NP
		19 March 2015

Senior Judge Lush:

1. This is an application by the Public Guardian for the revocation of a Lasting Power of Attorney ('LPA').
2. Because of the nature of the application, I am required by the practice guidance on Transparency in the Court of Protection: Publication of Judgments, [2014] COPLR 78, to allow this judgment to be published.

The background

3. ID was born on 11 August 1928 and used to own a shop that sold handbags.
4. She married in 1952 and has two sons:

(a) BW, 60, who lives in Hampshire and is the managing director of his own public relations and marketing business; and

(b) MD, 57, who lives in Cornwall and owns a gift shop.

5. The family originally lived in Camberley, Surrey, but moved to Cornwall in 1975, after her husband took early retirement for health reasons. He died in 1977, aged 52.
6. ID lived in a semi-detached Victorian villa in the middle of a seaside town. During a spell of cold weather in January 2010 the water pipes burst causing a significant amount of flood damage. The insurance company paid out approximately £27,000 for the repair works, and ID subsequently lived in a self-contained flat on the ground floor until May 2013, when she moved into a residential care home.
7. On 27 March 2009 she executed an LPA for property and affairs in which she appointed her two sons to act jointly as her attorneys. The LPA was registered by the Office of the Public Guardian ('OPG') on 28 September 2009.

The application

8. On 1 December 2014 the Public Guardian applied to the court for two orders:

(a) an immediate order freezing ID's accounts with Barclays, Halifax and the Post Office; and

(b) an order revoking the LPA and directing that a member of the panel of deputies be invited to act as ID's deputy for property and affairs.

9. The application was accompanied by a witness statement made by Sophie Farley, the caseworker who had investigated the matter on behalf of the Public Guardian. She said that:

(a) Cornwall County Council had raised concerns about unpaid care fees totalling £31,392.60;

(b) the Council was also concerned that ID was not receiving a personal allowance;

(c) on 24 June 2014 the OPG asked the respondents to provide full accounts of their dealings as ID's attorneys by 11 July;

(d) reminders had to be sent to them on 17 July;

(e) on 21 July BW asked for an extension of time, and said that he was meeting the Council on 1 August to discuss the arrears;

(f) building works had been carried out on ID's property to split it into two flats in order to generate an income;

(g) her son, MD and his wife were occupying the upstairs flat, and supposedly paying rent, and the downstairs flat, in which ID used to live, was used as a holiday let;

(h) unaccounted payments from ID's accounts totalled £34,540.61;

(i) a Court of Protection Visitor went to see ID on 4 July 2014, and confirmed that she lacks the capacity to revoke the LPA.

10. On 8 December 2014 I made an order freezing the accounts and another order requiring the OPG to serve the application on the respondents; the respondents to respond by 9 January 2015, and the matter to be referred back to a judge on or after 12 January.

The objections

11. On 7 January 2015 BW completed an acknowledgment of service in which he said he agreed that the LPA should be revoked, but suggested that the court should make an order appointing him as ID's deputy jointly with a panel deputy.
12. He also filed a witness statement. Referring to his mother's admission to a care home in May 2013, he said:

"At this time I believed that it would be in my mother's best interests for the property to be sold. I intended seeking professional advice on whether there would be a better financial return on a sale of the individual flats or the property as a whole.

However, my brother disagreed with me that this was the best course of action. He was of the opinion that it would be in my mother's best interests to retain the property. My brother had recently sold his home and proposed that he move into the top floor flat as a tenant. He would pay a full market rent to reside there. I could see the obvious benefits, given that this would generate rental income which would enable us to meet more of my mother's care costs without having to use the capital as soon."

13. On the same day, 7 January 2015, MD filed an acknowledgment of service, in which he said:

"I do not wish to be involved in expensive litigation, and if it is felt, after considering my witness statement, that I should no longer be an attorney for my mother then I will abide by whatever order the court may make in relation to that. I would however prefer that a professional deputy not be appointed, primarily because of the cost. I understand that my brother BW may be asking the court that he continue as sole attorney for my mother, and I would have no objection to that. I am willing to continue as attorney if that is considered appropriate and in my mother's best interests."

14. He also filed a fairly lengthy witness statement, at paragraph 21 of which he said:

"BW would come down and visit about four times a year on average, but the bulk of the caring for Mum fell to me. I found it very physically, mentally and emotionally exhausting, and it took a toll on me and my family. I was available for my mother 24 hours a day 7 days a week, and caring for her became increasingly difficult. Although I did not keep receipts for everything I bought for her, it was all paid for from a separate wallet containing cash withdrawn from her accounts, and I never used that cash for anything else, so in that way I was able to ensure that my own expenditure and hers were kept entirely separate."

15. In view of these objections, on 22 January 2015 I made an order listing the matter for an attended hearing on 16 March 2015 and set out a timetable for the filing of any further evidence or submissions leading up to the hearing.

Further witness statements

16. Sophie Farley filed a further witness statement on 5 February 2015, in which she said:

"As mentioned in my first witness statement, ID's state pension and rental income is received in an account in Barclays Bank … in BW's name. He was requested on 11 September 2014 to inform me once the account has been changed into ID's name. To date I have not had a response from him. On 23 December 2014 Barclays Bank confirmed they were not able to freeze the account as it was not held in ID's name solely or jointly.

On 4 February 2015 Cornwall Care confirmed that £37,567.42 is outstanding in care fees.

In light of the above information, the Public Guardian requests the court to revoke the LPA made by ID and considers the appointment of a panel deputy to be in the best interests of ID."

17. On 6 March 2015 BW filed a witness statement in which he said:

"I have no knowledge of the 'wallet' that MD talks about. I have no knowledge of the withdrawals from the various accounts that MD could also not remember. When preparing the financial submission for the OPG this practice and the subsequent withdrawals were not made known to me by MD.

Regarding Mum's financial affairs, MD has always been involved in that side of her life. When we both were appointed as attorney, I had no reason to question MD on Mum's financial affairs, as Mum was still controlling her affairs."

The hearing

18. The hearing took place on Monday 16 March 2015 and was attended by:

(a) Gemma Hopper and Sandy Heer of the OPG; and

(b) the two respondents, BW and MD, in person.

19. Gemma Hopper said that the OPG had three main concerns:

(a) the property;

(b) the bank accounts; and

(c) the outstanding care home fees.

20. The respondents confirmed that their mother's property is still in her sole name and is worth about £350,000. MD said he had spent £80,000 of his own money renovating the upstairs flat.
21. The respondents also stated that they have made an application for Continuing Healthcare, which, if it is successful, means that the NHS will pay for ID's care home fees, including her board and accommodation.

The law relating to the revocation of an LPA

22. The Public Guardian's application was for an order under section 22(4) of the Mental Capacity Act 2005 for the revocation and cancellation of the registration of the LPA.
23. Section 22 of the Mental Capacity Act 2005 describes the circumstances in which the Court of Protection may revoke an LPA. It refers to the donor of an LPA as 'P' and the attorney appointed by the donor as 'the donee'.
24. Section 22(3)(b) states that:

"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."

25. 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."

Decision

26. As regards ID's capacity, I accept the report of the Court of Protection Visitor, Joanna Jackson, who confirmed that ID has an impairment of, or a disturbance in the functioning of, the mind or brain, namely advanced dementia, and as a consequence she lacks capacity to:

(a) instruct the attorneys to provide an account;

(b) direct the attorneys to make decisions upon her behalf regarding the management of her affairs; and

(c) revoke the LPA.

27. There was an entry in the Visitor's report that amused me. In response to a standard instruction, "Please ascertain the donor's view with regard to the attorney continuing to act on their behalf", the Visitor replied: "ID was unable to tell me who managed her finances – she told me I was a nosey parker." I can see why someone, who was unaware of the reason for the enquiry, might reach that conclusion.
28. As I have said elsewhere, "with almost unerring monotony in cases of this kind, a failure to pay care fees and a failure to provide a personal allowance are symptomatic of more serious irregularities in the management of an older person's finances."
29. In this case, the serious irregularities are:

(a) a property belonging to ID, on which MD claims to have spent £80,000 of his own money renovating the upstairs flat;

(b) a co-mingling of MD's funds with the funds paid out to ID by the insurance company following the flood damage to the property;

(c) a Barclays account in BW's name, into which ID's state pension and the rental income from the downstairs flat are paid, though not the rent (if any) from the upstairs flat; and

(d) payments that are unaccounted for totalling £34,540.61.

30. I am satisfied that the attorneys have behaved in a way that contravenes their authority and is not in ID's best interests and, accordingly, I revoke the LPA.
31. I propose to appoint a panel deputy to act solely as ID's deputy and have decided not to appoint BW as a joint deputy for the following reasons.
32. ID appointed her two sons act jointly, rather than jointly and severally, as her attorneys under the LPA.
33. In his witness statement of 6 March 2015 BW said:

"Regarding Mum's financial affairs, MD has always been involved in that side of her life. When we both were appointed as attorney, I had no reason to question MD on Mum's financial affairs, as Mum was still controlling her affairs."

34. BW should have acted jointly with his brother, rather than allow him to have a free rein in the management of their mother's property and financial affairs. For this reason he is jointly liable for any loss to ID's estate. Furthermore, if MD turns out to be a man of straw, BW could find himself wholly liable for the loss to ID's estate, and there is a potential conflict between his interests and his mother's interests.
35. In addition, I am by no means convinced that BW had no involvement in what he described as 'that side of her life'. As said in his witness statement of 7 January 2015:

"Sophie Farley has highlighted that the Barclays Bank Account is in my sole name.

I knew that my duties as attorney required me to keep my mother's funds separate from my own. This was the sole reason I opened the account, so that there was an account which could receive my mother's state pension and the rental income from the ground floor flat. I had opened the account so that the account name read Mr BW re [name of the property] and I believed that this was sufficient to fulfil my duties.

The intention has always been that this was my mother's account and that I was simply managing it on her behalf. I confess to not realising that I also ought to ensure that the name on the account was my mother's and not my own.

As soon as I was informed by Sophie Farley that the account need to be in my mother's name I went into my local Barclays branch to have it changed. The branch manager informed me that this was not possible."

36. I simply don't believe it.