OL, Re [2015] EWCOP 41

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 12622499

[2015] EWCOP 41

COURT OF PROTECTION

Date 24 June 2015

MENTAL CAPACITY ACT 2005

IN THE MATTER OF OL

First Avenue House

42-49 High Holborn

London WC1V 6NP

Before

SENIOR JUDGE LUSH

Between

THE PUBLIC GUARDIANApplicant

DARespondents

YSRespondent

ESRespondent

Sandy Heer for Public Guardian

Claire van Overdijk, instructed by Cheshire Law Associates for first respondent

The second and third respondents in person for in person

Hearing Hearing date: 9 June 2015

JUDGMENT

Senior Judge Lush:

[1]“An attorney takes on a role which carries a great deal of power, which they must use carefully and responsibly”: Mental Capacity Act Code of Practice, paragraph 7.58.

[2]This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney (‘LPA’) for property and financial affairs because the attorneys have used their power carelessly and irresponsibly.

The background

[3]OL is 77. She was born in Barbados on 15 November 1937 and came to England in 1953. Initially she worked as a caterer for British Railways, but later became a civil servant with the Department of Health and Social Security. In 1956 she married a man whom she had met on the boat when she came over from the West Indies. He died in 1993.

[4]She has three children:(a) an elder son, ES, who is 53 and is a procurement manager. He lives in South Norwood, London SE25.

(b) a daughter, DA, who is 51 and lives with OL in Croydon, Surrey. She works full-time as non-vocational qualifications assessor.

[5]OL used to live in a maisonette in Stockwell, London SW9. In 2010 her daughter moved in with her, ostensibly to look after her, and in June 2014 they moved to a house in Croydon together.

[6]In 2011 OL was diagnosed as having vascular dementia and on 17 July 2013 she suffered a stroke. According to her elder son, she scored only 8 out of 30 in a Mini Mental State Examination on 21 August 2013, which suggests that she had severe cognitive impairment at that time.

[7]Two months later, on 19 October 2013, she executed an LPA for property and financial affairs and an LPA for health and welfare, in which she appointed DA and YS jointly and severally to be her attorneys.

[8]A friend who runs an Over 60s’ Club witnessed her signature, and the certificate provider, who assessed her capacity to create the LPA, was a woman, who said:

“I have known OL for over 40 years and am a close and personal friend of her and the family. I am also a close friend of the family back in Barbados and England. OL and I have spent holidays away and belong to the same clubs.”

[9]An application was made to the Office of the Public Guardian (‘OPG’) to register the LPAs and they were registered on 11 December 2013.

[10]In June 2014 OL’s elder son, ES, contacted the OPG and expressed his concerns about the sale of his mother’s maisonette in Stockwell and the purchase of a house in Croydon. When he had questioned his sister about these transactions, she had told him it was none of his business.

The application

[11]The Public Guardian formally opened an investigation and, having gathered evidence that was symptomatic of financial abuse, on 8 January 2015 he applied to the court for the following

[12]The application was accompanied by a witness statement made on 12 December 2014 by Mohsin Abbas, an investigations officer with the OPG, who said that:(a) OL’s maisonette in Stockwell was sold for £730,000 on 23 May 2014.

(b) The property in which she now lives with her daughter DA was bought on 13 June 2014 for £430,000 entirely with OL’s funds.

(c) OL and the two attorneys had subsequently executed a declaration of trust stating that OL has only a 20% share in the property (worth £86,000), whereas the attorneys, neither of whom had contributed anything towards the purchase price, have a 40% share each. This represents an outright gift of £172,000 to each of the attorneys.

(d) A firm of conveyancing solicitors in Chelmsford acted for them in the transaction and drew up the declaration of trust.

(e) The OPG wrote to the two attorneys on 22 July and 5 August 2014 asking them to produce a full account of their dealings but had still not received any accounts from them.

(f) £127,885 of OL’s money was used to pay off DA’s mortgage on her former home in South Norwood, which she still owns. It is divided into two flats, one of which is let at a rent of £850 a month.

(g) A further £80,000 of OL’s money was spent on building work and a loft conversion at DA’s property in South Norwood.

(h) In a period of six months OL had gone from having a property worth £730,000 to having only £7,000 in her bank account plus, of course, a 20% share of the house in Croydon.

(i) A Court of Protection General Visitor, Patti Simonson, visited OL on 27 July 2014, and concluded that she did not have capacity to revoke the LPA.

[13]One of the exhibits attached to Mohsin Abbas’s witness statement was a telephone attendance of a call he had made to DA on 15 August 2014. It said:

“Spoke to attorney DA. ... I asked why she hadn’t replied to my initial letter dated 22nd July 2014 along with the other attorney YS to which she said they answered questions to the COP Visitor thinking this was a full account they had provided when they clearly hadn’t. DA told me she didn’t clearly understand the role of an attorney along with YS the other attorney. She also said that she couldn’t account because there were too many questions and that she didn’t have any of the information I requested in the letter. Advised that I would be making an application to the COP to which she didn’t seem bothered and said that she along with YS would answer any questions the COP have for them.”

[14]On 15 January I made a directions order setting out a timetable for the OPG to serve the papers on the attorneys and for the attorneys to respond. On 23 April 2015 I made a further order listing the matter for hearing on 9 June 2015.

[15]On 27 May 2015 OL’s elder son, ES, filed a witness statement in which he said:

“I fully support the OPG’s request to revoke and cancel the LPA. I would like the court to consider appointing me either as a sole or joint deputy, the other deputy being selected from the panel of deputies. I believe this would be in my mother’s best interests. As previously stated I have already some knowledge of my mother’s financial affairs in both the UK and Barbados. I also believe that as her son I can properly represent my mother’s views and wishes. It is clear that with just £7,000 remaining from the sale of her home there is very little left to pay for the services of a deputy and therefore it would be in the best interests of my mum to preserve what little is left and appoint me as deputy.”

The hearing

[16]The hearing took place on 9 June 2015 and was attended by:(a) Sandy Heer of the OPG;

(b) Claire van Overdijk of counsel and her client, DA;

(d) ES.

[17]On 5 June 2015 Miss van Overdijk filed a position statement, which she concluded as follows:

“DA does not accept that she has breached her fiduciary duty owed to the donor and maintains that she has acted entirely in her mother’s best interests and therefore opposes the application. She further asserts that any of the donor’s money which has been spent either by her or her brother, YS, has been spent for the benefit and enjoyment of the donor. She relies on her witness statement which refers to the history of the matter and various sacrifices she has made whilst taking care of her mother. As has been explained above, DA denies that she used the LPA in order to give effect to the sale of [the maisonette in Stockwell] or the purchase of [the house in Croydon]. She maintains that these transactions were carried out with the full involvement of the donor through solicitors. The deed of trust put in place showing 40% shares to the first and second respondent and 20% share to the donor was prepared by these solicitors and the donor’s signature was witnessed. If it is to be suggested that the donor did not have the capacity to enter unto this deed of trust, it is respectfully submitted that the OPG’s enquiries ought to be extended and directed towards the solicitors who prepared this deed of trust. The OPG also makes the point that the deed of trust was put in place just six weeks before Ms Simonson visited the donor. However, the court is reminded that there is no medical evidence available to understand how the donor’s cognitive function has been affected by the stroke and how this has affected her capacity to make decisions in relation to her property and affairs. Moreover, the OPG appears to accept that the donor had the capacity to make the LPAs in October 2014 (after her stroke) as the validity of the instruments is not in dispute. It is acknowledged that there is no formal agreement in place for the rent from [DA’s property in South Norwood] to go to the donor. DA is willing to agree to suitable arrangements to ensure that the donor’s interests are adequately protected in this respect and is presently taking advice on the issue with a view to updating the court at the hearing. DA is also willing to file annual accounts with the OPG should this be deemed necessary.”

[18]Miss van Overdijk also produced a draft order setting out a timetable for obtaining and commenting on a specialist report on OL’s capacity. I had to remind her that the current issue before the court was simply whether the attorneys had behaved in a way that had contravened their authority or was not in the donor’s best interests.

[19]Questions regarding OL’s capacity to make substantial lifetime gifts, and (even if she had the requisite capacity) whether she had been unduly influenced in parting with approximately £640,000 of her money, and whether all or any of these transactions should be set aside, were matters for another day and another court. Months, if not years, of litigation in the Chancery Division could lie ahead. OL needs someone immediately, who can manage her property and financial affairs honestly and competently, in her best interests, and free from any conflict of interest or undue influence.

[20]After a brief adjournment, during which she discussed these matters with DA and YS, Miss van Overdijk returned to the courtroom and announced that the attorneys were willing to stand down in order to facilitate the appointment of a panel deputy. However, in view of the family dynamics, they were unhappy at the prospect of ES being appointed as a deputy either alone or jointly and severally with a professional deputy.

The duties of an attorney

[21]Section 42(1) of the Mental Capacity Act 2005 provides that “the Lord Chancellor must prepare and issue one or more codes of practice … (c) for the guidance of donees of lasting powers of attorney.”

[22]Section 42(4) states that “it is the duty of a person to have regard to any relevant code if he is acting in relation to a person who lacks capacity and is doing so in one or more of the following ways – (a) as the donee of a lasting power of attorney.”

[23]The Mental Capacity Act 2005 Code of Practice was issued by the Lord Chancellor on 23 April 2007, several months before most of the substantive provisions of the Act came into force on 1 October 2007.

[24]Chapter 7 of the Code is headed “What does the Act say about Lasting Powers of Attorney?” Paragraph 7.58 states that “an attorney appointed under an LPA is the chosen agent of the donor and therefore, under the law of agency, the attorney has certain duties towards the donor. An attorney takes on a role which carries a great deal of power, which they must use carefully and responsibly.”

[25]The Code then goes on to describe ten of these duties, and I propose to limit this discussion to considering just three of them, because they formed the basis of the Public Guardian’s case against the first two respondents.

[26]Paragraph 7.60 of the Code says: Fiduciary duty “A fiduciary duty means attorneys must not take advantage of their position. Nor should they put themselves in a position where their personal interests conflict with their duties. They must also not allow any other influences to affect the way in which they act as an attorney. Decisions should always benefit the donor, and not the attorney. Attorneys must not profit or get any personal benefit from their position, apart from receiving gifts where the Act allows it, whether or not it is at the donor’s expense.”

[27]Paragraph 7.67 says: Duty to keep accounts “Property and affairs attorneys must keep accounts of transactions carried out on the donor’s behalf. Sometimes the Court of Protection will ask to see accounts. If the attorney is not a financial expert and the donor’s affairs are relatively straightforward, a record of the donor’s income and expenditure (for example, through bank statements) may be enough. The more complicated the donor’s affairs, the more detailed the accounts need to be.”

[28]And paragraph 7.68 states: Duty to keep the donor’s money and property separate “Property and affairs attorneys should usually keep the donor’s money and property separate from their own or anyone else’s. There may be occasions where donors and attorneys have agreed in the past to keep their money in a joint bank account (for example, if a husband is acting as his wife’s attorney). It might be possible to continue this under the LPA. But in most circumstances, attorneys must keep finances separate to avoid any possibility of mistakes or confusion.”

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

[29]The Public Guardian’s application was for an order under section 22(4)(b) of the Mental Capacity Act 2005 for the revocation and cancellation of the registration of the LPA.

[30]Section 22 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’.

[31]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.”

[32]Subsection (4) says 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

[33]I am satisfied that the attorneys have behaved in a way that contravenes their authority or is not in the donor’s best interests.

[34]Their failure to keep accounts of the transactions carried out on the donor’s behalf or to produce any record of her income and expenditure would alone be sufficient to warrant the revocation of their appointment. However, in this case both attorneys, and in particular DA, have compounded their culpability by taking colossal advantage of their position and obtaining personal benefits far in excess of the limited power that attorneys have to make gifts of the donor’s property under section 12 of the Mental Capacity Act. DA has also failed to keep the donor’s money and property interests separate from her own interests in respect of the property she owns in South Norwood.

[35]In her report dated 4 August 2014, the Court of Protection General Visitor, Patti Simonson, said:

“The donor did not recognise the term Lasting Power of Attorney or the description of what an LPA is for and stated that she had never signed any documents which were to do with someone else managing her financial affairs. She said that she had not signed anything and that she usually manages everything herself. As she did not think she had signed anything or had given her authority to someone else, she did not understand the question of revoking or suspending the LPA.”

[36]I accept the Visitor’s report and am satisfied that OL lacks capacity to revoke the LPA. Accordingly, I shall by order revoke it for her.

[37]With regard to OL’s right to respect for her private and family life under

Article 8 of the European Convention on Human Rights

, the court’s interference with the exercise of this right by revoking her LPA for property and financial affairs is both in accordance with the law and necessary for the prevention of crime.

[38]As regards the appointment of ES as OL’s deputy for property and affairs, I do not believe he has sufficient detachment or impartiality to manage his mother’s affairs and to ensure that her interests and position are properly considered. I sense that he is motivated partly by a desire to salvage his own inheritance and partly by a craving for revenge against his sister and brother. To appoint him jointly and severally with a panel deputy would simply impede the decision-making process and increase the costs incurred by OL’s estate.

[39]I propose to appoint a panel deputy and authorise them to take such steps as are necessary or expedient to restore OL’s estate so far as possible to the position in which it would have been before the attorneys began acting so recklessly and irresponsibly.

[40]In view of the attorneys’ conduct, I consider that a departure from the general rule as to costs in property and affairs proceedings is justified and shall make no order as to costs.

order

“An order under section 22(4)(b) of the Mental Capacity Act 2005 for the revocation and cancellation of the registered Lasting Power of Attorney for property and financial affairs made by OL. An order directing that a member of the panel of deputies be invited to make an application to be appointed to make decisions on behalf of OL in relation to her property and financial affairs.”