Re RG [2015] EWCOP 2

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.

Case No 11948985

[2015] EWCOP 2

COURT OF PROTECTION

Date Date: xx January 2015

MENTAL CAPACITY ACT 2005

First Avenue House

42-49 High Holborn,

London WC1V 6NP

Before

Senior Judge Lush

Between

THE PUBLIC GUARDIANApplicant

(1) PBRespondents

(2) JWRespondent

Re RG

Fatima Chandoo for Public Guardian

The First Respondent in person for in person

The second respondent did not attend

Hearing Hearing date: 26 January 2015

JUDGMENT

Senior Judge Lush:

[1]This is an application for the court to reconsider an order made on the papers, partially revoking an enduring power of attorney (‘EPA’).

[2]Rule 89 of the Court of Protection Rules 2007 says 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.

The background

[3]RG was born in 1935 and formerly worked for Jecco, an aviation company in Bournemouth.

[4]He used to live in Parkstone, but since May 2013 he has resided in a nursing home in Branksome.

[5]He married twice and has four children from his first marriage, with whom he has had no contact for the last forty years.

[6]In 1977, he married his second wife, SG, who had two children from her previous marriage, namely:(a) a daughter, JW, who was born in 1965 and lives in Berkshire; and

(b) a son, PB, who was born in 1966 and lives in the former matrimonial home in Parkstone.

[7]On 28 March 2006 RG signed an EPA, in which he appointed his wife and two stepchildren, JW and PB, jointly and severally to be his attorneys, with general authority to act on his behalf in relation to all his property and affairs.

[8]In 2007 RG began to exhibit the symptoms of frontotemporal dementia, or Pick’s disease, and at about the same time his wife developed a deep vein thrombosis, which eventually spread to her lungs.

[9]In her last will and testament dated 27 May 2008 SG:(a) appointed her husband, her son, and her sister to be her executors and trustees;

(b) gave her jewellery to her son’s daughter;

(c) gave her half share of the matrimonial home in Parkstone to her trustees to allow her husband to live there for the rest of his life, and on his death the net proceeds of sale are to go to PB;

(d) gave her residuary estate to her husband; failing whom, to PB; and

(e) expressly declared she had made no provision for her daughter, JW, “due to a lack of contact during my severe illness.”

[10]RG made a mirror-image will on the same day, including declarations that he had not made any provision for:(a) his own children “due to lack of contact over many years”; and

(b) his stepdaughter, JW, “due to a lack of contact during the severe illness of my wife SG.”

[11]SG died in October 2008 and three weeks after her death PB applied to the Office of the Public Guardian (‘OPG’) to register RG’s enduring power of attorney. It was registered on 27 January 2009.

[12]The relationship between the two attorneys is extremely poor and PB has consistently excluded JW from acting as an attorney.

[13]In 2010 JW voiced her concerns to the OPG about her brother’s management of RG’s property and financial affairs.

[14]The OPG formally opened an investigation and in February 2011 it applied to the court for an order requiring PB to produce a full account of his dealings under the EPA.

[15]On 23 May 2011 District

Judge Ralton made an order, on the papers, stating that:

“Further to paragraph 16(2) of Schedule 4 of the Mental Capacity Act 2005 PB shall keep annual accounts in respect of RG’s estate and shall retain accountants to draw up and retain a copy of such accounts.”

[16]On 11 July 2013 the OPG wrote to PB asking for information about his management of RG’s finances and it became patently obvious that PB had neither retained an accountant nor kept annual accounts as ordered by District Judge Ralton.

The Public Guardian’s application

[17]On 17 March 2014, Alan Eccles, the Public Guardian, submitted a further application, in which he sought the following

[18]The application was accompanied by a witness statement (COP24) dated 5 March 2014 and made by Safina Hussain, an investigating officer with the OPG. In summary:(a) There were outstanding care fees of £6,189.

(b) The nursing home was about to give RG notice to quit because of the non-payment of fees.

(c) PB was in breach of his fiduciary duties by commingling funds. He had said that RG had given him permission to use his credit card, and that he was paying off the credit card with his own money.

(d) Santander had provided the OPG with details of RG’s credit card account, on which there was an outstanding balance of £752.65. It had instructed Moorcroft Debt Recovery Limited to recover the debt and a county court judgment against RG had been obtained on 4 February 2014.

(e) Santander also provided statements for an additional bank account in RG’s name, which PB had not declared to the OPG.

(f) PB had said that the house in Parkstone was subject to a mortgage, which is currently in RG’s sole name and is being paid solely from RG’s funds, even though he lives in a nursing home.

(g) JW said that PB did not acknowledge her as a co-attorney and, therefore, it was impossible for her to assist in managing RG’s property and affairs.

(h) The Public Guardian was applying for an order revoking the appointment of PB as an attorney, and limiting registration to JW as the sole attorney, because there was no evidence to suggest that JW would act other than in RG’s best interests.

[19]Several interlocutory orders were made and several witness statements were filed and on 19 August 2014 I made an order on the papers,(a) revoking the appointment of PB as an attorney; and

(b) directing the OPG to limit the registration of the EPA to JW acting as the sole attorney.

[20]The order was entered and issued on 5 September 2014.

The application for reconsideration

[21]On 23 September 2014 – within the period of 21 days allowed by rule 89 - PB applied to the court to reconsider the order at an attended hearing.

[22]His application was accompanied by a witness statement in which he said:(a) I believe the statements from the OPG and JW to be inaccurate and biased.

(b) RG’s personal opinion has not been taken into consideration.

[23]PB presented a rather more eloquent statement of his case in a letter to the court dated 4 January 2015, in which he said:

“I would like to reiterate that I have only ever had RGs’ best interests, wellbeing and welfare at heart. I have given more than 8 years of care to both RG and SG and I have asked for nothing in return and have not benefited financially. Caring for RG has always been a labour of love and not for financial gain. I have always consulted RG with anything to do with his care, finances and other matters. As RG’s health deteriorated his needs became greater and more demanding. RG required constant 24 hour attention. He had become incontinent and became ill very often which required home visits from doctors and trips to the hospital on a number of occasions. I showered him, took him to the toilet, cleaned his mess, cooked for him 3 times a day and gave him his tablets twice a day and much more. This was every day for 6 years. JW never had any involvement with RG’s care but was offered the chance to care for him which she refused. I have only ever wanted to protect RG from the abusive telephone calls, letters and aggressive visits to our home from JW and her husband which seem to have been overlooked. These things are not in the best interests of RG. JW has still not visited RG at the nursing home after stating she would. I am a kind and caring person and of good character, who has devoted as much time as possible to a man who deserved to be looked after by his family in the best possible way. RG became too ill for me to carry on looking after him and needed a good home to care for him, but I still have his best interests at heart and visit him as often as I can, usually once a week, and make sure he has everything he needs. Even though I believe the nursing home to be at fault with an administration error in regards to RG’s care fees, I am willing to pay for the said fees. Also RG’s credit card and mortgage will be paid in due course, finances permitting. I have spoken with RG and he would still like me to carry on dealing with his finances and affairs on his behalf.”

[24]On 11 December 2014 Safina Hussain of the OPG made another witness statement (her fourth), in which she said, among other things:

“Although it is not disputed that RG has been well cared for by PB during his role as attorney, the Public Guardian is of the position that RG’s finances are not being managed in his best interests. Therefore, PB’s application for a reconsideration of the court order issued on 5 September 2014 limiting the registration of the EPA to JW only, should be dismissed. Despite numerous requests put forward by the OPG for PB to provide a full satisfactory account, he has not carried out his duties as attorney by having regard to the provisions set out in the Mental Capacity Act Code of Practice paragraphs 7.58 and 7.60, which require an attorney to keep accounts and to keep the donor’s money and property separate from their own. Although PB has admitted to having RG’s income paid into his own account to help cover the costs of RG’s care fees, the household bills for the property they both jointly own and the mortgage in RG’s own name, it is difficult to confirm whether PB has not benefited financially from this, where his personal interests conflict with his duties as an attorney. PB has admitted to creating a credit card debt using RG’s finances for his own personal use, which he claims to have received permission from RG to use. This has resulted in a debt being incurred in the estate of RG. PB also failed to clear the credit card debt in RG’s name which he has created. Furthermore, the attorney has failed to comply with paragraph 1 of the court order issued on 25 May 2011 which directs “PB shall keep annual accounts in respect of RG’s estate and shall retain accountants to draw up and retain a copy of such accounts.”

[25]The hearing took place on Monday 26 January 2015 and was attended by:(a) Fatima Chandoo and Gemma Hopper from the OPG; and

(b) PB.

[26]JW did not attend.

[27]PB submitted that, if the court was still minded to remove him as attorney, he would prefer an independent deputy to be appointed in his place, rather than limit the registration of the EPA to JW acting as the sole attorney.

The law relating to the revocation of an EPA

[28]The second limb of the Public Guardian’s application of 17 March 2014 was for an order under paragraph 16(4)(g) of Schedule 4 to the Mental Capacity Act 2005, which states that:

“16(4) The court must direct the Public Guardian to cancel the registration of an instrument registered under paragraph 13 in any of the following circumstances - (a) – (f) …. (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.” (a) – (f) …. (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.”

[29]There was a series of reported decisions on the ‘unsuitability’ of an attorney some ten to 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

[30]All three cases involved disputes between middle-aged siblings over the management of their elderly mother’s property and financial affairs.

[31]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.”

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

[33]Generally speaking, any attorney acting under an EPA who has behaved, or is behaving, or proposes to behave, in a way that contravenes his authority or is not in the donor’s best interests is likely to be unsuitable to be the donor’s attorney, but the converse is not necessarily true. An attorney may be unsuitable to be the donor’s attorney because the donor has fallen out with them and no longer wishes them to act, even though their behaviour has been exemplary.

Decision

[34]The Public Guardian has mounted an effective challenge to PB’s competence as an attorney.

[35]I am satisfied that PB has contravened his authority and failed to act in RG’s best interests and that, having regard to all the circumstances, he is unsuitable to be RG’s attorney.

[36]He may be an affectionate and attentive stepson, but that’s not the point. He has been a hopeless attorney, and has broken almost every rule in the book, and I sense that he has done so wilfully.

[37]Accordingly, I confirm my order of 5 September 2014 revoking PB’s appointment as RG’s attorney.

[38]I have one or two reservations regarding limiting the registration of the EPA to JW acting as the sole attorney. These are as follows.

[39]First, I am not convinced that it would entirely respect RG’s rights, will and preference in accordance with Article 12.4 of the United Nations Convention on the Rights of Persons with Disabilities.

[40]Although RG appointed JW to be one of his attorneys in March 2006, he and his wife subsequently fell out with her, and in May 2008 they both expressly excluded her from taking any benefit under their wills.

[41]Nevertheless, RG did not revoke JW’s appointment as one of his attorneys, which, of course, he could have done, while he still retained capacity.

[42]Secondly, I must return to that line of authorities on the ‘unsuitability’ of an attorney acting under an EPA. In the first of these cases, In re W (Enduring Power of Attorney)

[2000] 3 WLR 45

, Jules Sher QC considered the concept of unsuitability in the context of hostility between various members of the donor’s family, as is unfortunately the case here. At pages 51 and 52 he said as follows:

“The second ground of unsuitability is the hostility between the three children. The Master concluded that that fact alone rendered any one of them unsuitable to be Mrs. W’s attorney. In my judgment such hostility may well have such consequences but it all depends upon the circumstances. For example, had the estate of Mrs. W been complex and had it required strategic decisions in relation to its administration, one would expect the attorney to have had to consult and work with her siblings in relation to the administration. In such circumstances the evident hostility between them would impact adversely on the stewardship of the attorney, no matter who was at fault in creating the hostility in the first place. But in this case the estate is simple. … In other words there is nothing of any significance left to be done. The assets are under proper control. The income simply needs to be fed through to the nursing home. The evidence is that this has been done by Mrs. X very efficiently. She has indicated more than once that she has never intended to charge for her services under the power of attorney and she does not intend to do so. Against this, if the Public Trustee were to come in, there would be an appointment fee and an annual fee of between £2,350 and £3,600 per annum. If a solicitor were appointed the total cost would be likely to be somewhat less than that. It seems to me that it is not right to say that (irrespective of the background) hostility of the kind we have seen in this case between the children renders any one of them unsuitable to be Mrs. W’s attorney. In this case the hostility will not impact adversely on the administration. It would, in my judgment, be quite wrong to frustrate Mrs. W’s choice of attorney in this way. Whether it is or is not a good idea for a parent in Mrs. W’s position, when such hostility exists, to appoint one child alone as attorney is another question. But Mrs. W did so and, on the evidence, did so knowing of the hostility. That is her prerogative and in my judgment, when the hostility does not interfere with the smooth running of the administration, the court should not interfere of the ground of unsuitability.”

[43]RG’s estate is not as simple as the donor’s in Re W. It consists of a beneficial interest in the net proceeds of sale of the former matrimonial home in Parkstone, in which RG has not only a 50% share, but also a life interest in his late wife’s 50% share. Moreover, PB is currently living in the property.

[44]Strategic decisions will need to be made about:(a) the redemption of the mortgage of £116,000, the interest on which is currently being paid from RG’s funds;

(b) the extent to which RG should be paying for the other outgoings on the property;

(d) obtaining vacant possession; and

(e) the eventual sale of the property.

[45]In respect of each of these decisions JW will have to consult and work closely with her brother, PB.

[46]Despite these misgivings, I uphold my original decision to limit the registration of the EPA to JW acting as the sole attorney because:(a) I regard it as a less restrictive alternative to the appointment of a deputy;

(b) it complies with resolution 1859 (passed on 25 January 2012 by the Parliamentary Assembly of the Council of Europe) on protecting human rights and dignity by respecting the previously expressed wishes of patients;

(c) as the Public Guardian’s witness statement stated, there is “no evidence to suggest that JW would act other than in RG’s best interests;”

(d) JW will be acting gratuitously and her services will be considerably cheaper than those of an independent deputy, who would almost certainly be a member of the OPG’s panel of deputies;

(e) we have not yet reached the stage of ‘last resort’; though, if the hostility between the siblings does interfere with the smooth running of the administration of RG’s affairs, the court can then consider the appointment of a deputy of last resort; and

(f) having regard to all the circumstances, I believe it is in RG’s best interests.

order

“An order under paragraph 16(2)(c) of Schedule 4 of the Mental Capacity Act 2005 directing PB to supply or produce the accounts he was directed to produce by order dated 23 May 2011 from 23 May 2011 to the date of the court’s order within 28 days of the order. If PB fails to provide satisfactory accounts within 28 days of the court’s order, the court is asked to partially revoke the registered EPA under paragraph 16(4)(g) Schedule 4 of the Mental Capacity Act 2005 by revoking the appointment of PB as an attorney for RG leaving JW as sole attorney.”