DT, Re [2015] EWCOP 10

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.

[2015] EWCOP 10

Case No 12525971

COURT OF PROTECTION

Date 25 February 2015

MENTAL CAPACITY ACT 2005

First Avenue House

42-49 High Holborn,

London WC1V 6NP

Before

Senior Judge Lush

Re DT

Between

THE PUBLIC GUARDIANApplicant

Nadia Dhillon for Public Guardian

The respondents attended in person and were not represented for in person

Hearing Hearing date: 19 February 2015

JUDGMENT

Senior Judge Lush:

[1]This is an application by the Public Guardian to revoke and cancel the registration of an Enduring Power of Attorney (‘EPA’).

[2]It is unusual for me to dismiss an application by the Public Guardian, but on this occasion I am not satisfied that the order he is seeking:(a) is proportionate;

(b) is less restrictive in terms of DT’s rights and freedom of action;

(d) warrants public interference in his private and family life; or

(e) is in his best interests.

The facts

[3]DT was born in 1943 and used to be a salesman for Prudential Insurance. He has a history of anxiety and depression and retired on medical grounds when he was 44. He subsequently undertook various ventures on a self-employed basis, one of which was selling homebrew equipment.

[4]DT and his wife originally lived in Essex and moved to Lowestoft, Suffolk, after he retired. He is now a resident in a care home on the north Norfolk coast.

[5]His wife was born in 1946. They married when she was eighteen, and she left him, reluctantly, though on the advice of Suffolk Social Services, when he went through a particularly self-destructive phase in 2006. She lives on her own in a small, one-bedroom apartment in Chelmsford.

[6]They have three sons, all of whom live in Essex:(a) IT, who was born in 1967, and is an information technology consultant;

(b) PT, who was born in 1969, and is an information technology manager; and

[7]DT has dementia, which is caused by a combination of:(a) vascular disease;

(b) an acquired brain injury; and

[8]His head injury occurred in 2006, when he fell down a flight of stairs and fractured his skull, causing a haemorrhage in the right frontal region of the brain.

[9]On 23 July 2007 he executed EPA, in which he appointed his sons jointly and severally to be his attorneys, with general authority to act on his behalf in relation to all his property and affairs.

[10]The EPA was registered by the Office of the Public Guardian (‘OPG’) on 26 September 2011.

The application

[11]On 26 June 2014 the Public Guardian submitted an application to the court, in which he sought the following orders:

“The applicant makes this application and asks for a declaration as to DT’s mental capacity to make decisions in relation to a matter or matters concerning his financial affairs. In the event that the court declares that DT lacks mental capacity, an order under Schedule 4 paragraph 16(2)(b)(ii) of the Mental Capacity Act 2005 directing IT, PT and MT to provide within 28 days full detailed accounts with supported documentation to the Public Guardian for their dealings with the management of DT’s property and financial affairs from 26th September 2011 to the date of the order. Should IT, PT and MT fail within 28 days to provide satisfactory accounts then the applicant seeks and order under Schedule 4 paragraph 16(4)(g) and sub-paragraph (5) directing the Public Guardian to revoke the EPA and to cancel the registration of the EPA made by DT. An order directing that Suffolk County Council be invited to make an application for appointment as deputy to manage DT’s property and affairs.”

[12]The application was accompanied by a witness statement made by Sonya Hanson, an investigations officer with the OPG, who said that:(a) On 14 June 2013 Suffolk County Council had contacted the OPG expressing its concern about arrears of care home fees, which at that time amounted to £19,624.

(b) IT responds to all attempts at contact by Suffolk County Council by asking questions and is underpaying DT’s care home fees by £100 a week.

(c) DT and his wife are joint owners of the former matrimonial home in Lowestoft, which is currently let at a rent of £550 per month. The rent is paid directly into his wife’s account.

(d) On 21 May 2014 Suffolk County Council confirmed to the OPG that it would be willing to act as DT’s deputy for property and affairs.

The Court of Protection Visitors’ reports

[13]There are two kinds of Court of Protection Visitor:(a) Special Visitors, who are registered medical practitioners and have a special knowledge of, and experience in, cases of impairment of or disturbance in the functioning of the mind or brain: Mental Capacity Act 2005, section 61(2); and

(b) General Visitors, who need not have a medical qualification: section 61(3).

[14]As is standard practice in any safeguarding investigation, the Public Guardian asked a Court of Protection General Visitor to visit DT and in her report of the visit dated 10 August 2013 the Visitor, Diana Gordon, said: “I spoke to the client and put to him the questions that required a response for the investigation. With regard to a general opinion about the EPA, the client was fully aware that his sons were jointly responsible and said he was very happy with the arrangement. He said they were ‘good lads’. It was evident the client considers his estranged wife to be the problem and says she is taking his money. He was knowledgeable about his income but complained that it was going into her pocket. He believes his sons to be in a difficult position because she is their ‘Mum’. He feels he is in a ‘Catch 22’ situation because of that.

[15]Because there was uncertainty whether DT still had capacity to make a number of specific decisions relating to the management of his property and financial affairs, the Public Guardian commissioned a Court of Protection Special Visitor, Dr Rajaratnam Thavasothy, to examine DT. It was not the easiest of interviews and in his report dated 31 March 2014, Dr Thavasothy described it as follows:

“I visited DT on 24.03.14. … Staff warned me that he could scream at me and would not engage and, even if he does engage, it is likely he would not engage for more than a few minutes. At my request the staff had informed him of my visit and the purpose of my visit. I assessed DT in a large room to which he walked unsteadily with the help of staff and sat in a chair. He was well dressed with clean clothes. He was kempt. The staff left him with me and, as I introduced myself, he understood the purpose of my visit and immediately shouted, “I wanted my sons to have the power of attorney, I don’t want my wife to be involved.”

I then asked him what he meant by the power of attorney and he became extremely hostile and shouted again reasserting that his wife should not be involved. I distracted him by talking about his interest in films. He then talked at length about film actors from the 1960s to the 1980s, often repeating the same statement over and over again. After diverting his attention I thought I could proceed with the mental state examination, but as soon as I started assessing his mental state, he would scream at me, shouting loudly to the point that staff came into the room to make certain that I was alright. After the staff left I once again distracted him by talking about his various interests, and when I recommenced the mental examination, he once again started screaming and shouted repeatedly that he had had ‘enough’ and wanted me to leave. The staff arrived and I suggested that they could take him out, as he was demanding cigarettes, and that I would see him after he had smoked his cigarette. When I recommenced the mental state examination, he shouted that he did not wish his wife to be involved and that he wanted his sons to have the power of attorney. When I asked him what he understood about the power of attorney, he once again became very angry, but later I was able to elicit that he wished to convey that all his finances should be managed by his sons. He stated that he trusted them implicitly and did not wish anyone else to be involved. He stated clearly “of course I am happy for my sons to have the power of attorney. My wife does not have the power of attorney.” When I asked him how much money he has, he shouted “I don’t know. The boys have the money and give me whatever money I need. I don’t have to go out anywhere.” As he screamed, ordering me out of the room, I had to terminate the assessment. Apart from noting that he becomes impulsively aggressive with a very low level of tolerance, and often became frustrated when he found it difficult to answer any question, I did not find any evidence of depression or elation of mood. Though I could not conduct a mini-mental state examination, as he became angry, I am certain that he does present with cognitive deficits which add to his frustration when he finds it difficult to answer simple questions. His long term memory was, however, very good when he detailed the private lives of film stars from films he has seen in the past. Conclusion DT suffered dementia which is due to several factors. There is evidence of vascular cause as well as brain damage following a head injury and it is likely that chronic alcoholism has contributed towards the cognitive defects. The brain scan had shown evidence of brain damage with particular focus on the frontal lobe which is involved in behaviour and aggression. It is likely that his impulsive aggressive behaviour is due to the damage to the frontal lobe. In spite of the diagnosis of dementia, he still has the ability to indicate who should have the power of attorney. He has asserted strongly his view that his sons should continue to have the power of attorney and manage his personal and financial affairs. Response to questions raised in the commissioning document (1) DT has the capacity to revoke or suspend the EPA. (2) DT has the capacity to make a new LPA. (3) DT has capacity to direct the attorney to make decisions on his behalf regarding the management of his affairs and has entrusted the attorneys to make all decisions on his behalf and has implicit trust in his sons. (4) DT does not have the capacity to manage his own affairs. (5) Though DT has the capacity to instruct his attorneys to provide an account I do not think he will instruct them as he does not find the need for it, having implicit faith in their ability. (6) DT has capacity to choose or say who he would like to manage his affairs, should he not be happy with the existing attorney. (7) DT does not have any awareness of his financial situation. (8) DT is being well cared for. (9) Whilst his needs are currently being met within the care home, the manager of the care home informed me that, because he soils his clothes, being doubly incontinent, there is a need to purchase new clothes quite often, and hence a supplementary sum of money should be made available each month to cater for this need. She suggested an additional sum of £50-£100 per month. In my opinion, his current placement at the care home is the best place for him. (10) DT has clearly expressed his opinion that he is happy with the attorneys’ management of his affairs. (11) There are no other issues I wish to bring to the attention of the Public Guardian. (12) DT is not capable of dealing with the complaint. I did not discuss the complaint with him, as I felt he could then misinterpret the complaint and became hostile towards his carers. (13) I did not confirm whether he had made any financial gifts from his estate as he clearly did not wish me to probe in his financial affairs and became increasingly hostile when I tried to ascertain his current financial state. Conclusion Response to questions raised in the commissioning document

The objections

[16]On 29 July 2014 I made an order requiring:(a) the OPG to serve the application on the attorneys by 8 August 2014;

(b) the attorneys to account to the OPG by 5 September 2014; and

(c) the OPG to confirm by 26 September 2014 whether the attorneys had complied with the order and whether their accounts were satisfactory.

[17]Between 17 and 20 August each of the attorneys filed an acknowledgment of service objecting to the application. They all said much the same thing:

“We feel the options provided are not in best interests in terms of financial health and welfare. As stated in [the Special Visitor’s report] DT has stated he is happy with the current attorney arrangement.”

[18]On 9 September 2014 IT applied for an extension of time until 26 September 2014 in which to produce the accounts. He said:

“Owing to recent holiday commitments, it has not been possible to collate all relevant information enabling the witness statement to be completed.”

[19]On 22 September 2014 I made an order requiring:(a) the attorneys to produce their accounts by 3 October 2014; and

(b) the OPG to confirm by 24 October 2014 whether or not the accounts were satisfactory.

[20]On 2 October 2014 MT filed a witness statements, in which his concluding remarks were as follows:

“The property [address] was the former matrimonial home. If our father was not in need of residential care, our parents would no doubt be living in that property together as one household. Our mother has only limited income in her own right and our father’s pension income would have maintained both of them. Consequently, we the attorneys have tried to balance the needs of both of our parents. Our mother needed to move to Essex so that we, the attorneys, could provide her with a support mechanism, as she was so low and depressed by the events involving our father’s illness. The family are satisfied that DT is quite clear that he wishes his three sons to have full control of his finances. They consider that DT’s views in this matter should be paramount.”

The Public Guardian’s response

[21]On 12 December 2014 Sonya Hanson of the OPG filed a further witness statement, in which she said as follows:

“On 22nd October 2014 I spoke to the manager of the care home who told me that [DT’s sons and wife] visit DT very infrequently i.e. approximately once or twice a year and only one of his sons (unknown) telephones to see how he is in the interim. [The manager] mentioned that she had initially raised concerns to Suffolk Safeguarding Unit on 30th March 2011 as DT’s wife had asked him to sign “pieces of paper”. [The manager] stated that DT often complains that his wife is taking his money and using it to buy petrol. [The manager] said that in light of this, Social Services had asked the attorneys to provide an account of their financial dealings to DT on numerous occasions, so that he would be aware of how his money was being spent but to date this had not happened. I received an email from Suffolk County Council on 24th October 2014 confirming that there is currently £68,997.40 outstanding in unpaid care home fees. Whilst it is understandable that, as DT’s wife and children would consider all aspects of the family needs when making financial decisions, as DT’s attorneys it is their duty under the Mental Capacity Act 2005 to act in his best interests. The evidence shows that they are therefore conflicted in their interests and have failed in their duties as DT’s attorneys by not keeping accurate accounts, allowing his care home fees to accrue to £68,997.40, and failing to provide him with sufficient personal allowance. The Public Guardian, therefore, asks the court to revoke the EPA and invite Suffolk County Council to become deputy for DT.”

Suffolk’s objection to the application

[22]On 27 January 2015 the head of legal services for Suffolk County Council filed an acknowledgment of service objecting to the Public Guardian’s application and requesting that a panel deputy be appointed. He said:

“The Public Guardian seeks an order appointing Suffolk County Council’s Director for Adults and Communities as deputy for DT. The Council’s finance team, which deals with the transactional aspects of estates for which the director is deputy, has advised that the contentious history of DT’s property ownership and the complexity of his estate are such that they lack the expertise to deal with the matter. If a deputy is appointed, it would appear to be in DT’s best interests for this to be an appointment from the panel. Regrettably, the social worker with whom the OPG investigator liaised was not aware that the Council does not accept an invitation to become deputy for all referrals and indicated that Suffolk County Council would accept the appointment, which is not the case.”

The hearing

[23]The hearing took place on Thursday 19 February 2015 and was attended by:(a) Nadia Dhillon and Sandeep Heer of the OPG; and

(b) the three attorneys, IT, PT and MT, who were accompanied by their mother and a family friend.

[24]IT said that there were three things he and his brothers were trying to negotiate with Suffolk County Council on their father’s behalf:(a) To agree a reasonable monthly figure to pay the care home, whilst also looking after their mother’s interests by ensuring that reasonable financial provision is made for her.

(b) The house in Lowestoft is on the market and has been sold, subject to contract, for £140,000. Contracts are due to be exchanged in two weeks’ time. They wish to negotiate a reasonable sum to pay off their father’s debt to Suffolk County Council, but the Council won’t talk to them about the debt or enter into negotiations.

(c) Ideally, they would like to move their father back to Essex. They are not entirely happy about the care he currently receives, and it is a six hour return journey for members of the family to visit him. This is the main reason why they are unable to visit him as often as they would like.

[25]DT is due to be re-assessed for NHS Continuing Healthcare shortly and, if the assessment is positive, his financial problems will gradually diminish.

[26]IT asked whether he could have some idea of the likely costs that would be charged by a panel deputy for managing his father’s property and financial affairs. As the representatives from the OPG were unable to give him an answer, I suggested that the panel deputy would be a solicitor, and he or she would charge an hourly rate of roughly £200.

DT’s assets and liabilities

[27]DT owns the following assets jointly with his wife: The former matrimonial home 140,000 Scottish Widows ISA 11,147 Halifax account 4,700 £155,647

[28]His half share is worth £77,823.50.

[29]As at 24 October 2014, his liabilities were £68,997.40 in unpaid care fees, in respect of which Suffolk County Council has registered a charge against his share of the net proceeds of sale of the former matrimonial home.

[30]His pension income is £1,415.84 a month. This is a combination of his state pension and 50% of his occupational pension. The Prudential agreed to pay the other 50% to his wife.

[31]He should be receiving half the rent of the former matrimonial home, which, according to Sonya Hanson’s first witness statement, is let at a rent of £550 per month.

[32]The fees at the care home are £482.18 a week, of which DT is supposed to contribute £299.97 and Suffolk County Council pays the balance of £182.21.

The law relating to the revocation of an EPA

[33]The Public Guardian’s application was for an order under paragraphs 16(4)(g) and 16(5) of Schedule 4 to the Mental Capacity Act 2005.

[34]Paragraph 16(4) states that:

“The court must direct the Public Guardian to cancel the registration of an instrument registered under paragraph 13 in any of the following circumstances - (g) on being satisfied that, having regard to all the circumstances and in particular the attorney’s relationship to or connection with the donor, the attorney is unsuitable to be the donor’s attorney.” (g) on being satisfied that, having regard to all the circumstances and in particular the attorney’s relationship to or connection with the donor, the attorney is unsuitable to be the donor’s attorney.”

[35]Paragraph 16(5) provides that:

“If the court directs the Public Guardian to cancel the registration of an instrument on being satisfied of the matters specified in sub-paragraph (4)(f) or (g) it must by order revoke the power created by the instrument.”

[36]There was a series of reported decisions on the ‘unsuitability’ of attorneys about fifteen years ago:(a) Re W (Enduring Power of Attorney)

[2000] 3 WLR 45

, where the decision of the first instance judge was subsequently upheld by the Court of Appeal inRe W (Enduring Power of Attorney)

[2001] 2 WLR 957

;

(b) Re E (Enduring Powers of Attorney)

[2000] 3 WLR 1974

; and

[2004] 3 All ER 277

[37]All three cases involved disputes between siblings in their fifties or sixties over the management of their mother’s property and financial affairs, and this line of authorities culminated in the statement of Mr

Justice Patten (as he then was) in Re F, [2004] 3 All ER 277, at page 284f:

“It seems to me that to remove a chosen attorney because of hostility from a sibling or other relative, in the absence of any effective challenge to his competence or integrity, should require clear evidence either that the continuing hostility will impede the proper administration of the estate or will cause significant distress to the donor which would be avoided by the appointment of a receiver. Neither of these conditions is satisfied by the evidence in this case.”

[38]There is no hostility between the three attorneys in this case. Essentially, the issue is whether there has been an effective challenge to their competence or integrity.

[39]The criteria for the court to revoke an EPA are different from those for revoking a Lasting Power of Attorney (LPA). Subsections (3) and (4) of section 22 of the Mental Capacity Act 2005 provide that the court may revoke an LPA if(a) the donor lacks the capacity to revoke the LPA, and

(b) the attorney has behaved or is behaving in a way that contravenes his authority or is not in the donor’s best interest, or proposes to behave in such a way.

[40]In the case of an EPA, the court does not need to be satisfied that the donor lacks the capacity to revoke it himself. It merely needs to be satisfied that, having regard to all the circumstances, and in particular the attorney’s relationship to or connection with the donor, the attorney is unsuitable to be the donor’s attorney.

DT’s present wishes and feelings

[41]The Public Guardian asked the Court of Protection Special Visitor to assess whether DT had the capacity to revoke the EPA himself, and the Visitor confirmed emphatically that he did have capacity. Although, strictly speaking, this information was unnecessary for the purpose of deciding whether to revoke the EPA, I cannot ignore it.

[42]If one thing is certain in this case, it is that DT is perfectly satisfied with his sons’ management of his property and financial affairs under the EPA, and he has no desire to revoke their appointment as attorneys.

[43]Having regard to the contents of the Special Visitor’s report, and in particular the frustration and anger expressed by DT when questions concerning his sons’ management of his affairs were raised, I consider that, if the court were to revoke the EPA, it would cause significant distress to him, which cannot possibly be in his best interests.

[44]I am reminded of the remarks of Her Honour Judge Hazel Marshall QC in Re S and S (Protected Persons) [2008] COPLR Con Vol 1074, where she held that, if P expresses a view that is not irrational, impracticable or irresponsible, “then that situation carries great weight and effectively gives rise to a presumption in favour of implementing those wishes, unless there is some potential sufficiently detrimental effect for P of doing so which outweighs this.”

[45]She went on in to say in paragraph 58 of her judgment:

“It might further be tested by asking whether the seriousness of this countervailing factor in terms of detriment to P is such that it must outweigh the detriment to an adult of having one’s wishes overruled, and the sense of impotence, and the frustration and anger, which living with that awareness (insofar as P appreciates it) will cause to P. Given the policy of the Act to empower people to make their own decisions wherever possible, justification for overruling P and “saving him from himself” must, in my judgment, be strong and cogent. Otherwise, taking a different course from that which P wishes would be likely to infringe the statutory direction in s 1(6) of the Act, that one must achieve any desired objective by the route which least restricts P’s own rights and freedom of action.”

[46]There is nothing irrational, impracticable or irresponsible in DT’s wish that his sons should continue to act as his attorneys, and I am not satisfied that their conduct has had a sufficiently detrimental effect on DT or his finances to justify overriding his wishes.

Financial provision for DT’s wife

[47]At the beginning of this judgment, I said that this case was unusual, insofar as I rarely dismiss a safeguarding application made by the Public Guardian. It is also unusual because there is no evidence of dishonesty of the part of the attorneys and, although they have failed to produce satisfactory accounts, I would be very surprised if any of them had misappropriated their father’s funds. The principal criticism is that they have been applying DT’s funds towards the maintenance of their mother (his wife), who would otherwise be reliant on means-tested benefits.

[48]Paragraph 3(2) of Schedule 4 to the Mental Capacity Act 2005, which applies to EPAs, though not to Lasting Powers of Attorney, provides that:

“Subject to any conditions or restrictions contained in the instrument, and attorney under an enduring power, whether general or limited, may (without obtaining any consent) act under the power so as to benefit himself of other persons than the donor to the following extent but no further – (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.”

[49]The attorneys were, therefore, acting within the scope of their authority when they decided to make reasonable financial provision for their mother from their father’s funds. However, they seem to have made more generous provision for her than DT would have done to meet her needs, and I do not understand why she received the entire rental income from their former matrimonial home, rather than simply her own half share.

The costs of a panel deputy

[50]Section 19(3) of the Mental Capacity Act 2005 states that “a person may not be appointed as a deputy without his consent,” and I am disappointed that, having agreed to act as deputy, Suffolk County Council, subsequently withdrew its consent. This has an enormous impact on the costs involved.

[51]Public authority deputies are allowed remuneration in accordance with Practice Direction 19B, “Fixed Costs in the Court of Protection.” The rates of remuneration have remained static for the last four years, since 1 February 2011. Understandably, this is a bone of contention for cash-strapped local authorities, and partly accounts for an increasing and alarming trend in which councils are refusing to take on deputyship work.

[52]If Suffolk County Council were appointed as DT’s deputy, it would be entitled to an annual management fee of £700 for the first year and £585 for the second and subsequent years.

[53]At the hearing IT asked about the likely costs of a panel deputy, and I suggested that they would be in the region of £200 an hour. Any meaningful calculation is, of course, more complicated than that.

[54]The cost of employing a panel deputy depends on a number of factors, including:(a) the geographical location of the panel deputy’s practice;

(b) the various grades of fee earners involved in the matter;

(d) whether the costs relate to the first year of the deputyship or to the second and subsequent years;

(e) whether P is living in his own home or in an institutional environment;

(f) whether P’s family are at loggerheads with one another; and

(g) whether there has been financial abuse, and it is necessary to make further investigations or to bring proceedings against the abuser in order to restore P’s estate to its rightful level.

[55]As regards the geographical location of the deputy’s practice, the Senior Courts Costs Office (‘SCCO’), provides two national bands of guideline rates and three bands for London (City, Central London and Outer London).

[56]Within each of these five geographical bands, the SCCO allows different rates for four grades of fee earner.

[57]After the hearing, I checked the guidelines and can confirm that the SSCO allows the following hourly rates to solicitors and their support staff in Norfolk and Lowestoft, which comes within National Band Two: £a. A. Solicitors with more than 8 years’ post qualification experience 201

b. B. Solicitors with more than 4 years’ post qualification experience 177

c. C. Other solicitors and legal executives and fee earners with equivalent experience 146

d. D. Trainee solicitors, paralegals and fee earners with equivalent experience 111

[58]However, as far as I can see, there are no panel deputies based in Norfolk or Lowestoft. The nearest are in Essex, where National Band One applies, and they are allowed to charge the following hourly rates: £a. A. Solicitors with more than 8 years’ post qualification experience 217

b. B. Solicitors with more than 4 years’ post qualification experience 192

c. C. Other solicitors and legal executives and fee earners with equivalent experience 161

d. D. Trainee solicitors, paralegals and fee earners with equivalent experience 118

[59]As regards the nature, extent and complexity of the affairs that need to be managed and administered, DT’s former matrimonial home will be sold shortly. His share of the gross proceeds of sale will be £70,000. His share of the net proceeds of sale may be a couple of thousand pounds less than that and will be extinguished by the payment of his debt of £69,000 to Suffolk County Council. His remaining capital assets – a half share of a Scottish Widows ISA and a half share of the balance on a Halifax account – amount to just under £8,000. His income is roughly £17,000 a year.

[60]As can be seen from the fixed costs regime described above, generally speaking, costs are higher during the first year immediately following a deputy’s appointment than they are in the second and subsequent years. DT is likely to remain living in an institutional environment for the rest of his life. The family are not at loggerheads with one another and there is no evidence of dishonesty, which would warrant interfering with DT’s Article 8 rights for the prevention of crime.

[61]The average of Bands A to D in National Band One is a charge-out rate of £172 an hour and, if one reckoned that a fairly straightforward case, such as this, would involve at least twenty four hours’ work during the first year (in other words, an average of just two hours a month), one is looking at a baseline of £4,128 to which should be added:(a) VAT (£825.60);

(b) the cost draftsman’s fee (say £335) plus VAT (£67);

(c) the premium payable in respect of any security bond required by the court; in this case a single one-off premium of £98, not recurring annually;

(d) the detailed assessment fee of £225 (which applies where the costs exceed £3,000 including VAT and disbursements);

(e) the OPG’s initial deputy assessment fee of £100; and

(f) the OPG’s annual deputy supervision fee of £320.

[62]It is likely, therefore, that in this case, a panel deputy’s costs would be roughly £6,100 during the first year of appointment, and approximately two thirds of that sum in the second and subsequent years. By comparison, DT’s attorneys charge nothing. They don’t even claim travelling expenses when they go and see him, because they visit him as his sons, rather than as his attorneys.

[63]I consider that, in this case, the employment of a panel deputy to manage DT’s property and financial affairs, even if it were necessary (which it is not), would be a disproportionate drain on his limited resources.

[64]Considering all the relevant circumstances and, in particular, the extent to which DT retains capacity and his clear expression of his present wishes and feelings on the matter, I dismiss the Public Guardian’s application to revoke the EPA.