EL, Re (revoking a Lasting Power of Attorney) [2015] EWCOP 30

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 30

Case No 12262899

COURT OF PROTECTION

Date 29 April 2015

MENTAL CAPACITY ACT 2005

IN THE MATTER OF EL

First Avenue House

42-49 High Holborn

London WC1V 6NP

Before

SENIOR JUDGE LUSH

Between

THE PUBLIC GUARDIANApplicant

CS and PLRespondents

Nadia Dhillon for Public Guardian

The respondents in person for in person

Hearing Hearing date: 20 March 2015

JUDGMENT

Senior Judge Lush:

[1]This is an application by the Public Guardian for an order revoking a Lasting Power of Attorney (‘LPA’) for property and financial affairs and directing him to cancel its registration.

[2]I am required by the practice guidance on Transparency in the Court of Protection: Publication of Judgments, [2014] COPLR 78, to allow this judgment to be published.

The background

[3]EL was born on 10 March 1924. Her parents were Greek citizens and she inherited from them a property in Athens, which she still owns.

[4]Her husband was a British dental technician whom she met when she was working as a hygienist in a clinic in Athens. He died in 2011.

[5]In 2009 EL was diagnosed as having vascular dementia and since April 2011 she has lived in a residential care home in Bournemouth.

[6]She has two children, who also live in Bournemouth:(a) a daughter, CS, 66, who is now retired but formerly worked in local government; and

(b) a son, PL, 56, who is a dental surgeon.

[7]On 11 April 2010 EL signed an LPA for property and financial affairs in which she appointed her daughter and son to be her attorneys. They were appointed to act jointly in relation to any decisions about selling her house, and jointly and severally for everything else. Her house in Bournemouth has already been sold.

[8]On the same day she signed an LPA for health and welfare in which she appointed her daughter and son to act jointly in relation to decisions about where she should live and jointly and severally for everything else.

[9]The LPAs were registered by the Office of the Public Guardian (‘OPG’) on 12 July 2010.

[10]Apart from the property in Athens, EL’s assets are worth roughly £300,000. Her net income is about £1,000 a month and her care fees are £2,400 a month, to which should be added a personal allowance of £25 a week. The rent from the Greek property is €200 a month, which is paid into an account with the Alpha Bank in Athens.

Disputes between the attorneys

[11]Unfortunately, the attorneys don’t see eye to eye and neither of them trusts the other. They have differing views on who should control their mother’s finances and the best care option for her, and since 2012 each of them has made complaints to the OPG about the other’s conduct as an attorney.

[12]On 18 December 2012 PL applied to the court for an order revoking the LPA for property and financial affairs and appointing him as his mother’s sole deputy.

[13]CS opposed the application and on 22 August 2013 there was an attended hearing in Bournemouth County Court before District Judge John Sparrow, sitting as a nominated judge of the Court of Protection. At that hearing the attorneys agreed the following ‘Schedule of Agreed Responsibilities’:(1) They shall share with each other all details and bank statements in relation to all of EL’s bank accounts in the UK, Greece or elsewhere.

(2) In particular, each shall provide to the other on a monthly basis copies of bank statements of the accounts which he or she deals with on a day to day basis.

(3) PL shall provide to CS the password for the Lloyds TSB account number [number].

(4) CS shall provide to PL full details of the rental income and expenditure in relation to EL’s property in Greece every three months to commence in September 2013 and she shall share information of any significant expenditure in respect of the property within 14 days of such expenditure.

(5) CS shall provide to PL details of any accountant dealing with the finances of EL’s Greek property by 29 August 2013.

(6) CS shall provide to PL confirmation of the rental payments received in respect of the Greek property since October 2012 to date with confirmation (with documents) as to how the rental money has been utilised. If there has been no rental payment, CS shall provide PL with reasons for this and shall provide details of new tenants and any changes in tenants.

(7) PL shall provide to CS copies of all statements in respect of EL’s investments and bonds within 14 days of receipt.

(8) PL shall provide to CS all details and copy documents in relation to any changes to EL’s investments and bonds within 14 days of such changes.

(9) PL and CS shall communicate at all times about their mother’s finances openly, amicably and promptly.

(10) PL and CS shall meet with the manager of the [name] residential care home to discuss their respective concerns as to EL’s residence and care and to consider the options available. The meeting shall be arranged and take place by 18 October 2013.

(11) PL and CS shall each inform the other promptly as to any issues or problems as to EL’s care and details of any assessments of EL and shall provide the other with all reports, assessments or communications in relation to EL’s health and wellbeing. In particular CS shall provide to PL the written assessment or correspondence arising from EL’s assessment on 7 August 2013 at Kings Park Unit.

(12) PL and CS shall seek mediation in respect of the finances and/or EL’s residence and care. The mediator shall be agreed between them and, in default of agreement, shall be nominated by the court. The costs of the mediator to be borne equally between PL and CS. Such mediation is to take place no later than 30 October 2013.

[14]There was a further hearing before District Judge Sparrow on 12 November 2013.

Procedural history

[15]On 21 November 2014 the Public Guardian applied for the following

[16]The application was accompanied by a witness statement made on 17 November by Sonya Hanson, an investigations officer with the OPG. Among other things, she said that:(a) The OPG had asked both attorneys to account and it transpired that CS had withdrawn €28,914.50 and PL had withdrawn €25,545.68 from EL’s Alpha Bank account.

(b) PL had said: “This is my mother’s account which she had both myself and my sister added to as eventually it would be left to us on a 50/50 basis as per her Greek will.”

(c) On an exchange rate of 78 pence to €1, CS had received £22,553.31 and PL had received £19,925.63 from the account. The total is £42,478.94.

(d) Both attorneys regard the money in their mother’s account as their inheritance and consider that they are entitled to dip into it during her lifetime.

[17]One of the exhibits to Sonya Hanson’s witness statement was a report made on 21 July 2014 by a Court of Protection Visitor, Lynne Williamson, who said that:

“All the control has been taken by PL and he has not involved his sister as the LPA directed. He told the home owner that he was in sole charge and his sister had no authority. He has repeatedly pushed for her to be moved to a specialist dementia home in spite of the evidence showing it is not necessary. I did not meet either attorney but I was told by the home owner and the manager that CS is a supportive daughter visiting three to four times a week. She is very happy with her mother’s care and is supportive of the staff. PL is rude to the care staff and likes to ‘complain and moan’. He has insisted that he is in sole control of his mother’s affairs although the home owner knows this is not the case.”

[18]On 26 November 2014 I made an order requiring the Public Guardian to serve the papers on the attorneys, who were to respond to the application by 2 January 2015, and the matter was to be referred back to me on or after 5 January.

[19]On 19 December 2014 PL signed an acknowledgment of service in which he opposed the application. He said:

“EL’s monies are completely secure as both joint attorneys are closely monitoring them (and each other) and nothing can be paid for except in EL’s interests. Appointing a deputy would just incur extra costs to EL and be of no added welfare benefit to her.”

[20]He suggested that, if the court were to revoke the LPA, he should be appointed as his mother’s sole deputy with an independent deputy to oversee his activities. He also filed a witness statement.

[21]On 29 December 2014 CS signed an acknowledgment of service in which she consented to the Public Guardian’s application. She also filed a witness statement.

[22]On 16 January 2015 I made an order listing the application for an attended hearing on 20 March 2015 and setting out a timetable for filing and serving further evidence and submissions.

[23]PL filed a second witness statement on 31 January and CS filed a second witness statement on 6 February.

[24]On 20 February 2015 Sonya Hanson of the OPG filed a witness statement, which she concluded as follows:

“The evidence shows that PL and CS are unable to adhere to the Schedule of Agreed Responsibilities. Furthermore, they delegated their duties to their father and removed funds from EL’s Greek bank account. Therefore, the Public Guardian’s position remains the same. We ask the court to consider the immediate revocation and cancellation of the LPA for property and financial affairs made by EL and registered on 12 July 2010. The Public Guardian asks the court to consider directing that a panel deputy be appointed as deputy to make decisions on behalf of EL in relation to her property and financial affairs and to take the necessary steps to recover any misappropriated sums.”

[25]The hearing took place on 20 March 2015 and was attended by: ◦ Nadia Dhillon and Sandy Heer of the OPG; and ◦ the respondents in person, accompanied by their spouses.

The law relating to the revocation of an LPA by the court

[26]On the day before the hearing in this matter, I heard an almost identical case in which any collaboration between two attorneys had either been non-existent from the start or had subsequently broken down. It was published on the BAILII website as Re ED

[2015] EWCOP 26

, and reported in The Times on 24 April 2015 under the headline “Feuding sisters lose control of mother’s home and savings.”

[27]The principal difference between the two cases is that in Re ED the donor had executed an Enduring Power of Attorney (‘EPA’), whereas in this case the donor had made an LPA.

[28]In Re ED I was able to revoke the EPA on the ground that, having regard to all the circumstances and in particular their relationship to or connection with the donor, the attorneys were unsuitable to be the donor’s attorneys: Mental Capacity Act 2005, Schedule 4, paragraph 16(g).

[29]About fifteen years ago there was a series of authorities that considered in detail the concept of ‘unsuitability’ in the context of disputes between attorneys or their siblings:(a) Re W (Power of Attorney)

[1999] 2 FLR 1163

;

(b) Re W(Enduring Power of Attorney)

[2001] 2 WLR 957

;

[2000] 3 WLR 1974

, and

(d) Re F

[2004] 3 All ER 277

[30]In the last of these cases, Re F, at page 284f, Mr

Justice Patten said that:

“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.”

[31]In this case, there is clear evidence that the continuing hostility between the two attorneys is impeding the proper administration of EL’s estate and, for that reason, CS and PL are unsuitable to be her attorneys.

[32]However, it’s not as simple as that. The law relating to the revocation by the court of an EPA is different from the law governing the revocation of an LPA, which is set out in section 22 of the Mental Capacity Act 2005.

[33]In Re J [2011] Con Vol 716, at paragraph [67], Her Honour

Judge Hazel Marshall QC explained the difference as follows:

“[Section] 22 does not depend on a general or abstract notion of ‘unsuitability’, but is narrower and more focused. The court may only revoke an LPA if it is satisfied: ’22(3) … (b) that the donee … 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’.” ’22(3) … (b) that the donee … 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’.”

[34]At paragraph [73]

Judge Marshall went on to comment that:

“It appears to me that the general thrust of s 22(3)(b) is that the court can revoke an LPA if it is satisfied that the attorney cannot be trusted to act in the manner and for the purposes for which the LPA was conferred upon him/her. ... Further, if there is sufficient evidence that the attorney is behaving contrary to P’s interests, even in a different context, then it seems to me that that might quite reasonably provide a sufficient reason to revoke an LPA, perhaps because of conflict of interest.”

[35]And finally, at paragraph [75], she held that:

“In my judgment, the key … lies in considering the matter in stages. First, one must identify the allegedly offending behaviour or prospective behaviour. Secondly, one looks at all the circumstances and context and decides whether, taking everything into account, it can be fairly characterised as such. Finally, one must decide whether, taking everything into account … it also gives good reason to take the very serious step of revoking the LPA.”

Decision

[36]This LPA is not functioning satisfactorily because of the corrosive effect of the animosity between the attorneys, which has created an impasse in the management of EL’s affairs since at least 2012.

[37]The attorneys have complained about each other to the OPG. Mediation has been tried and failed. Usually, one court hearing should suffice, but in this case there have been three hearings: on 22 August 2013, 12 November 2013 and 20 March 2015. The ‘schedule of agreed responsibilities’, which was drawn up at the first of these hearings, was ineffectual because neither attorney was willing or able to adhere to it.

[38]Because they cannot be trusted to act in the manner and for the purposes for which the LPA was intended, I am satisfied that the attorneys have behaved in a way that is not in the donor’s best interests.

[39]I am also satisfied that they have contravened their authority by making gifts to themselves from their mother’s funds, which are far in excess of the limited authority conferred upon attorneys generally by section 12 of the Mental Capacity Act.

[40]The outcome is the same as it would have been if EL had executed an EPA, instead of an LPA, and I had found that, having regard to all the circumstances, the attorneys are unsuitable to be her attorneys, but the methodology is different.

[41]In addition, I have to be satisfied that EL lacks the capacity to revoke the power of attorney herself, whereas this is not a requirement under the EPA legislation.

[42]I am satisfied that EL does, indeed, lack capacity to revoke the LPA and in this respect I accept the report of the Court of Protection General Visitor, Lynne Williamson, who said as follows:

“She was diagnosed with vascular dementia in 2009. Dr Law Min’s report states ‘she has a known dementia.’ She does not know what [an LPA] is and has no recollection of making it, even when I showed her the copy. In my opinion she lacks the capacity to manage her own financial affairs. She had no knowledge of her income or capital and did not understand that her attorney was paying for her to stay at the home. At one point she told me that this was her home but she could not say where it was. The donor does not have capacity to say who she would choose to look after her affairs. She believes her father is doing this.”

[43]In his acknowledgment of service PL suggested that, if the court decided to revoke the LPA, then he should be appointed as the sole deputy with an independent deputy to oversee his activities.

[44]I dismiss this suggestion because I consider that PL was partly, if not primarily, responsible for the breakdown in the relationship between the attorneys in the first place. Again, I accept Lynne Williamson’s observations, which I have set out in paragraph 17 above.

[45]Accordingly, I shall make an order revoking the LPA and inviting a panel deputy to apply to be appointed as EL’s deputy for property and affairs.

order

1. An order under section 22(4)(b) of the Mental Capacity Act 2005 for the revocation and cancellation of the registered LPA for property and financial affairs made by EL and registered on 12 July 2010. 2. An order directing that a member of the panel of deputies should be invited to make an application for appointment as deputy to manage EL’s property and affairs with the powers to investigate and report as to the past management of EL’s affairs and be empowered to take such steps as are necessary to restore her estate to its correct level.