SM, Re (revocation of a Lasting Power of Attorney) [2015] EWCOP 27

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] EWHC 27 (Fam)

Case No 12534254

COURT OF PROTECTION

Date 21 April 2015

MENTAL CAPACITY ACT 2005

IN THE MATTER OF SM

First Avenue House

42-49 High Holborn

London WC1V 6NP

Before

Senior Judge Lush

Between

THE PUBLIC GUARDIANApplicant

MO and SDRMRespondents

Fatima Chandoo for Public Guardian

The respondents in person and unrepresented for in person

Hearing Hearing date: 17 March 2015

JUDGMENT

Senior Judge Lush:

[1]This is an application by the Public Guardian for the revocation of a Lasting Power of Attorney (‘LPA’) for property and financial affairs. Because the issues include whether “a person should be restrained from acting as an attorney” and whether “an appointment should be revoked,” I am required by the practice guidance, Transparency in the Court of Protection: Publication of Judgments, [2014] COPLR 78, to allow this judgment to be published in anonymised form.

The facts

[2]SM was born on 18 September 1944. She lives in Bletchley and has been in residential care since 5 January 2013.

[3]She was very briefly married from 1960 to 1962, and has a daughter, MO, who was born on 30 December 1961. MO has fibromyalgia, a long-term condition that causes pain all over the body.

[4]MO has two sons, the elder of whom, SDRM, was born on 10 September 1987, and currently lives in Norwich.

[5]On 8 March 2012 SM executed an LPA for property and financial affairs in which she appointed MO and SDRM jointly and severally to be her attorneys.

[6]The LPA was drawn up by Bridgeman Kettle, Solicitors, Bletchley, and a solicitor in that firm certified that SM had the capacity to create the power.

[7]The LPA was registered by the Office of the Public Guardian (‘OPG’) on 20 July 2012.

The application

[8]On 25 June 2014 the Public Guardian applied to the court for an order revoking the LPA and directing that a panel deputy be appointed as SM’s deputy for property and affairs.

[9]The application was accompanied by a witness statement made by Melanie Lewis of the OPG who said that:(a) on 22 November 2013 the OPG received a phone call from Milton Keynes Council saying that SM’s care fees were £9,739.85 in arrears.

(b) the caller also said that SM’s accounts were overdrawn and her bank statements revealed expenditure on services that she would never have required personally. For example, there were supermarket payments of £1,978 and other retail payments of £9,591.

(c) a Court of Protection General Visitor (Nicholas Dunkley) visited SM on 6 February 2014 and concluded that she has advanced Alzheimer’s disease, as a result of which she lacks the capacity to suspend or revoke the LPA.

(d) MO has failed to comply with her duties as attorney and has used her mother’s funds for her own benefit.

(e) Milton Keynes Council was not prepared to act as deputy and there was no alternative other than to appoint a panel deputy to manage SM’s property and affairs.

[10]In his report the Court of Protection General Visitor stated that:

“The attorney by her own account has had personal problems health wise in the past 18 months and described a situation to me whereby she had paid some debts for the donor and mixed her own income with the income of the donor. The attorney also said that the donor had been sending her son money and had paid sums into a trust fund for him. The attorney was unable to account for why the donor’s bank accounts were overdrawn despite my asking.”

[11]I should formally record that, at the hearing on 17 March 2015, MO categorically denied having made any of these admissions to the Visitor.

[12]The Visitor also said that:

“The donor needs clothing and the attorney seems unable or unwilling to furnish the donor with the most basic items necessary for the donor’s comfort and dignity. I suggest the OPG intervene to ensure that the donor can begin enjoying her income and assets to the appropriate extent.”

[13]SM still owns her house in Bletchley over which MO seems to be claiming proprietorial rights. In a statement she made to the OPG as part of the investigation, she said:

“The property is in my mother’s name. This property was purchased by my grandfather to be handed down through the family to make sure we always have somewhere to live no matter what our circumstances. Myself and my family moved to this address with my mother after looking after her at our address for a year and 3 months (she wanted to be at home) and gave up our council property as we felt it was in my mother’s best interest.”

Procedural history

[14]On 22 July 2014 I made an order requiring:(a) the OPG to serve the application and the witness statement on the attorneys by 1 August;

(b) the attorneys to respond by 29 August; and

[15]On 20 August 2014 MO said that the OPG had not served all the documents on her, so on 25 October I made a further order requiring:(a) the OPG to serve the application and the witness statement on the attorneys by 7 November;

(b) the attorneys to respond by 28 November; and

[16]On 25 November 2014 MO filed an acknowledgment of service in which she objected to the application, and a witness statement in which she said, “I am appalled at the statements against me. My answer to this order is laid out in Exhibit 1 attached.” Exhibit 1 was a fairly long and rambling diatribe.

[17]MO also stated:

“My eldest son who is my co-attorney has had no dealings with anything to do with this order against me. Apart from obviously visiting his Nan when he is down here, and speaking between us about how his Nan is. I have not been able to previously give you his address as until recently when he moved to Norwich he has been staying at different friends’ houses, so did not have a permanent address.”

[18]On 19 January 2015 I made an

[19]On 29 January 2014 Melanie Lewis filed a further witness statement in which she said: 1. ... 2. On 29 January 2015 I telephoned an officer of the Milton Keynes Local Authority Finance Team who advised that current care fee invoices for SM are being paid by direct debit but MO has defaulted on the care fee arrears repayment plan. 3. On 29 January 2015 an email was received from the LA Finance Team advising that the total of care fees outstanding for SM is £20,868.98. 4. I have considered MO’s application to the court dated 24 November 2014 but MO has still not provided the Public Guardian with an account of her spending from SM’s funds. 5. MO has provided copies of utility bills in her name for gas, electric and water at SM’s property as evidence of her having taken over payment of utility bills. 6. Bank statements for SM’s Barclays account show that before she moved into the care home on 5 January 2013, payments were made for utility bills at her property from her funds instead of the cost of these utilities beings shared with MO and her family. Bank statements for this account are not held beyond 25 January 2013 so the dates direct debits ceased from SM’s funds are not known. 7. After considering MO’s evidence dated 24 November 2014 the Public Guardian’s position remains the same and we would submit that MO has failed to comply with her fiduciary duties as attorney to SM:(a) MO has not been able to account to the Public Guardian;

(b) MO has failed to pay care fees;

(d) spending from SM’s funds has not always been for SM’s benefit or in her best interests. 8. The Public Guardian seeks an order from the court under paragraph 22(4) of the Mental Capacity Act 2005 revoking and cancelling the registered LPA made by SM. 9. As attorney SDRM has taken no part in the management of SM’s funds, and has not made any contact with either the Public Guardian or the court. The OPG would ask the court to consider inviting a member of the panel of deputies to manage SM’S property and financial affairs. The Public Guardian believes this is in the best interests of SM.

MO’s statement

[20]MO made a statement dated 22 February, though she did not post it until 12 March and it had not been received by either the OPG or the court until a copy was produced at the hearing on 17 March.

[21]MO insisted that she had not defaulted on any repayment plan. She said:

“… I told that person our financial situation and said “please send me a repayment plan”

. Numerous times I have called MK Council re-asking for this but no-one ever gets back to me. I am not refusing to pay this. I am waiting to receive a payment plan. As this has still not been done, on 10th February 2015 at 11.55 am I spoke to a lady called Anita at MK Council. I was in a complete mess (which I’m sure she will recall) and said that I had on numerous occasions asked for a repayment plan in respect of mum’s care home fees, and have still not received one. … What more can I do?”

[22]She concluded her statement by saying:

“As I have said all along, I love my mum and my family with all my heart, and I’m heartbroken to think people feel otherwise. I’m doing the best I can to follow my mum’s and my grandparents’ upbringing and wishes, by doing the best I can for my mum and my family. It’s just a shame that bad situations, a lack of good communication, and confusion has thrown everything up in the air, and come down a mess. The last few years have been a nightmare for me, mentally and physically; what with losing my mum to this awful illness, trying my best to get the help she needed, with doors always slamming in my face, then looking after my mum herself, find that as she gets worse I could no longer do it, so a care home was the only answer, then all this Court of Protection mental stress, and my physical pain getting worse, and my husband and youngest son getting worse, my head is about to blow, and I don’t know how much more I am expected to take. Please trust me, I could not be more sincere and honest about this if I tried. This has all been a case of grief, sadness, confusion and mix ups.”

The hearing

[23]The hearing took place on Tuesday 17 March 2015 and was attended by:(a) Fatima Chandoo and Timothy Goundry of the OPG; and

(b) the respondents in person, accompanied by Gaynor Gooch of the Personal Support Unit.

The law relating to the revocation of an LPA

[24]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.

[25]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’.

[26]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.” (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.”

[27]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.” (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

[28]I accept the Court of Protection General Visitor’s assessment of SM’s capacity and I am satisfied that she lacks capacity to revoke the LPA. The Visitor said:

“The donor was diagnosed with Alzheimer’s. The attorney informed me that in October 2012 the donor was formally diagnosed at The Lakes Assessment Centre in Bletchley, Milton Keynes, and at the time the donor’s diagnosis was described as severe. The care team leader at the donor’s current home also describes the donor’s Alzheimer’s as being severe and advanced. The donor’s dementia is so advanced that she does not know who her attorney is and I do not believe that the donor would be able to foresee the consequences or reasons for revocation or suspension. I do not believe the donor would have the ability to understand the nature of an LPA or the reasons for making one. I do not believe the donor would be able to retain or weigh up the information that would have to be given top her to approach the making of a new LPA, as her dementia is so advanced. The donor does not know her daughter any more, let alone the fact that her daughter is her attorney. The donor does not communicate coherently and rarely in the context of a situation, conversation or set of questions.”

[29]I am also satisfied that MO has behaved in a way that contravenes her authority and is not in SM’s best interests. She has failed to account. She has failed to pay her mother’s care fees. She has allowed the arrears to accumulate from £9,739 to £20,868 since the OPG’s investigation began. She has let her mother’s bank accounts become overdrawn, and she has spent an unquantified sum of her mother’s money on herself and her husband and their two sons.

[30]MO failed to realise that her mother’s admission into residential care required a fundamental reappraisal of her priorities in terms of expenditure. SM can no longer afford to support other members of her family from her limited resources. She no longer has funds surplus to her requirements, if indeed she ever did have. A trivial, though not untypical, example was mentioned at the hearing. She still pays her grandsons’ subscriptions of £9 a month to World of Warcraft, a massively multiplayer online role-playing game.

[31]Where MO’s version of events conflicts with that of others – as in the case of the Court of Protection General Visitor at paragraphs 10 and 11 above, and the finance team at Milton Keynes Council at paragraphs 19 and 21 – I prefer the other person’s account, simply because I do not believe that they would deliberately fabricate evidence against her.

[32]The statement that MO handed to me at the hearing is the testimony of someone who is at breaking point. It is not in SM’s best interests that her financial affairs should continue to be managed by a person who is unable to cope and clearly finds the responsibility of acting as an attorney overwhelming. The bad situations, lack of good communication and the confusion and mess of which she complains are largely of her own making.

[33]It would not be in SM’s best interests for her grandson to remain in post as her sole attorney for the following reasons:(a) he should have acted as a check and balance on MO, rather than allow her to wreak havoc with SM’s finances; his failure in this regard makes him partly responsible for the loss to her estate;

(b) the conflict of interests referred to in paragraphs 29 and 30; and

[34]Accordingly, I shall revoke the LPA and invite a panel deputy to act as SM’s deputy for property and affairs.

order

(a) inviting the OPG to file and serve any further evidence or submissions by 13 February;

(b) inviting the attorneys to file and serve any further evidence or submissions by 6 March; and

Cited in 1 later judgment

Imperial College Healthcare An NHS Trust v MB & Ors 2019