The Public Guardian v Marvin [2014] EWCOP 47

IMPORTANT NOTICE

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Neutral Citation Number: [2014] EWHC 47 (COP)

Case No 12499983

COURT OF PROTECTION

Date 20 November 2014

MENTAL CAPACITY ACT 2005

IN THE MATTER OF CS

First Avenue House

42-49 High Holborn

London WC1V 6NP

Before

SENIOR JUDGE LUSH

Between

THE PUBLIC GUARDIANApplicant

MARVINRespondent

Gemma Hopper for Public Guardian

MS in person for in person

Hearing Hearing date: 16 September 2014

JUDGMENT

Senior Judge Lush:

[1]This is an application by the Public Guardian to revoke two Lasting Powers of Attorney (‘LPA’) – an LPA for property and financial affairs and an LPA for health and welfare.

[2]The attorney concedes that he has contravened his authority and failed to act in the donor’s best interests in respect of the donor’s property and affairs, and has no objection to court revoking the LPA for property and financial affairs.

[3]However, he does not consider that he has contravened his authority or failed to act in the donor’s best interests with regard to the donor’s health and welfare.

The background

[4]CS was born in Jamaica in 1931 and came to England during the 1950’s. He worked as a train driver with London Underground and eventually became the manager of one of the busiest stations on the Underground network.

[5]He was married to a woman who died last year. They lived in Balham, London SW12 and there were no children of the marriage.

[6]In 1989 CS formed a relationship with a woman half his age, called MM. She was born in 1959 and, when he met her, she was a single parent with a one-year-old son.

[7]CS rented accommodation for MM and the baby, and divided his time between their home and the house that he shared with his wife in Balham.

[8]MM subsequently gave birth to CS’s son and daughter, who were born in 1990 and 1995 respectively.

[9]His son is a consultant in the oil and gas industry and his daughter is at university studying psychology.

[10]CS now lives with MM and their two children in a house in Surrey, which he and his late wife bought for £495,000 from the net proceeds of sale of their house in Balham in 2011.

[11]In 2009 he was formally diagnosed as having Alzheimer’s disease.

[12]On 10 August 2010 he executed an LPA for property and financial affairs, and an LPA for health and welfare in which he appointed:(a) his son, Marvin, to be the sole attorney; and

(b) MM’s elder son to be the replacement attorney.

[13]A friend from Croydon witnessed his signature and another friend from Balham, whom he had known for over twenty years, certified that CS had capacity to create the LPAs.

[14]CS did not take legal advice regarding the powers of attorney and it emerged at the hearing that the family had downloaded the prescribed forms from the Internet and decided that CS’s son, Marvin, should be the attorney, because MM was already his appointee for social security purposes. They assumed erroneously that she could not act as both attorney and appointee.

[15]An application was made to the Office of the Public Guardian (‘OPG’) to register the LPAs and they were registered on 1 November 2010.

The application

[16]On 12 May 2014 the Public Guardian applied to the Court of Protection for an

[17]The Public Guardian also applied for an interim

[18]These applications were accompanied by a witness statement, made by the officer who had investigated the case on behalf of the OPG, Rachel Bloore, who said that:(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.

[19]On 14 May 2014 I made an interim order freezing the Santander account and suspending the LPA for health and welfare.

[20]Two days later, on 16 May, I made a further order directing that:(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

The attorney’s response

[21]On receiving the application papers from the OPG, Marvin instructed McMillan Williams Solicitors, 138 High Street, Sevenoaks, Kent TN13 1XE to act for him, and on 19 June he filed an acknowledgment of service, in which he objected to the Public Guardian’s application and sought the following orders, instead:

“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.”

[22]The acknowledgment of service was accompanied by a witness statement in which Marvin said that a declaration of trust had recently been executed on 23 May 2014, in which MM and her elder son declared that they held the house for CS absolutely. He went on to say:

“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.”

[23]On 4 August I made an order directing that:(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

Further evidence and submissions

[24]On 12 August 2014 Rachel Bloore made a second witness statement, in which she said that:(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.

[25]As regards the lifting of the suspension on the LPA for health and welfare, Rachel Bloore submitted as follows: (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.

(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.

[26]Rachel Bloore also referred to an email that the OPG had received on 8 August 2014 from the local authority’s legal adviser, which is set out in the following paragraph, and she concluded her witness statement as follows:

“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.”

[27]On 8 August 2014 the local authority’s legal adviser, Matthew Blackwell, sent an email to the OPG, in which he said:

“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

[28]The hearing took place on 16 September and was attended by:(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.

[29]I asked MM about the ‘onesie’ she had designed and she replied that CS has a habit of shredding his incontinence pads and ingesting the contents. She had discussed the matter with his GP and they felt that this was the most appropriate way of proceeding.

The property and affairs deputyship

[30]The Public Guardian’s application was for the court to revoke the LPA for property and financial affairs and to appoint a panel deputy to manage CS’s property and finances.

[31]The panel consists of sixty-five members, most of whom are solicitors, and the court appoints a member of the panel in cases where no other suitable person is willing or able to act as deputy for someone who lacks mental capacity.

[32]Nicola Manning, a partner in McMillan Williams, is a panel deputy. However, she is currently in the process of reducing her workload so she can take on more of a business development role. McMillan Williams asked whether another partner in the firm, David Edward Hall, could be appointed instead, and he confirmed that he was willing to act as a joint deputy with Marvin.

[33]I was content to proceed on this basis and on 11 November 2014, after receiving a satisfactory deputy’s declaration (COP4) from both of them, I made an

[34]This order is unusual in the context of a safeguarding application and I must explain my reasons for making it.

[35]Although, by his own admission, Marvin is unsuitable to be his father’s attorney, this does not necessarily preclude him from being appointed to act as his father’s deputy.

[36]The main charge brought against him by the Public Guardian was that he had delegated his powers to his mother, who was living off CS’s income.

[37]Since the Mental Capacity Act 2005 came into force the Public Guardian has generally taken a hard-line approach towards the application of funds by substitute decision-makers to maintain an incapacitated adult’s dependants. This is because the Mental Capacity Act 2005 is silent on this matter, unlike the two statutes which it superseded, namely the:(a) Mental Health Act 1983, Part VII; and

(b) Enduring Powers of Attorney Act 1985.

[38]Section 95(1) of the Mental Health Act 1983 provided that:

“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.” (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.”

[39]Section 3(4) of the Enduring Powers of Attorney Act 1985, which has been re-enacted as the Mental Capacity Act 2005, Schedule 4, paragraph 3(2) in respect of enduring powers of attorney only, provided that:

“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.” (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.”

[40]Although the Mental Capacity Act is silent on this issue, the best interests test applies and, in most cases, making reasonable financial provision for their dependants is likely to be in the best interests of someone who lacks capacity to manage their own finances. For this reason, the order appointing David Hall and Marvin as joint deputies contains the following clause, as do most orders appointing a deputy for property and affairs:

“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.”

[41]Marvin acknowledges that he contravened his authority and did not act in CS’s best interests by his failure:(a) to understand or take advice about his role and responsibilities as an attorney; and

(b) to keep accounts and other financial records.

[42]These shortcomings are less likely to occur in the joint deputyship because:(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.

[43]There are no factors that militate against Marvin’s appointment as a deputy. For instance:(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.

[44]An order appointing Marvin to act jointly with a professional deputy is also, as far as is reasonably possible, compatible with:(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.”

[45]As I have said, this decision is unusual. The case is fact-specific, and it should not be regarded as setting a precedent for other cases in which the court finds itself having to revoke the appointment of an attorney under an LPA.

[46]I must now consider the LPA for health and welfare.

The LPA for health and welfare

[47]Subsections (3) and (4) of section 22 of the Mental Capacity Act 2005 provide that, in order to revoke an LPA, the court needs to be satisfied that:(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.

[48]When the court considers revoking an LPA, it should have regard to the donor’s rights under

Article 8 of the European Convention on Human Rights

(the right to respect for private and family life). In Re Harcourt [2013] COPLR 69, at paragraph 71, I commented that:

“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.”

[49]I am satisfied that CS lacks capacity to revoke the LPA himself. In this respect I accept the opinion of the Court of Protection General Visitor, Barbara Joyce, who said:

“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.”

[50]The remaining issue in this case, therefore, is whether Marvin has behaved, or proposes to behave, in a way that contravenes his authority or is not in CS’s best interests.

[51]In her second witness statement Rachel Bloore stated that: “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.” and “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.”

and

[52]As I said in paragraph 42 above, because I have appointed him and a solicitor to act jointly as CS’s deputies for property and affairs, Marvin will have ready access to legal advice on his role and responsibilities not only as CS’s deputy but also as his attorney for health and welfare.

[53]There is no evidence 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.

[54]I cannot criticise Marvin because his mother decided to dress his father in a onesie to prevent him from shredding his incontinence pads and ingesting the contents. She did so on medical advice and at the material time the law was as stated by Court of Appeal, on virtually identical facts, in Cheshire West and Chester Council v P [2012] COPLR 37. The Court of Appeal held that P had not been not deprived of his liberty and that, in determining whether someone is being deprived of their liberty, the circumstances of their situation and the surrounding context, and the reason, purpose and motive must be considered. This decision was later reversed by the judgment of the Supreme Court in

[2014] UKSC 19

, handed down on 19 March 2014.

[55]I note Marvin’s remorse with regard to his management of CS’s property and financial affairs, which I have taken as an assurance that he won’t make the same mistakes again. He said:(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.”

[56]And I was reassured to read Matthew Blackwell’s assessment that:(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.”

[57]I agree with the local authority. I am not satisfied that Marvin has behaved, is behaving or proposes to behave, in a way that contravenes his authority or is not in CS’s best interests with regard to his personal welfare, and I dismiss the Public Guardian’s application to revoke the LPA for health and welfare.

order

(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. order: (a) directing the immediate suspension of the LPA for health and welfare, and (b) freezing CS’s savings account with Santander. order: ◦ revoking the LPA for property and financial affairs and appointing David Hall and Marvin to act jointly as CS’s deputies for property and affairs; ◦ authorising them to apply to the Land Registry for a restriction to be entered on the proprietorship register; and ◦ authorising them to access the Santander account, which had been frozen pursuant to my order of 14 May 2014.