ARL, Re [2015] EWCOP 55

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 12608839

[2015] EWCOP 55

COURT OF PROTECTION

Date 18 August 2015

MENTAL CAPACITY ACT 2005

First Avenue House

42-49 High Holborn

London WC1V 6NP

Before

SENIOR JUDGE LUSH

Between

THE PUBLIC GUARDIANApplicant

(1) ICLRespondents

(2) JJTRespondent

(3) Lyn ParkinRespondent

Re ARL

Nadia Dhillon for Public Guardian

Annabel Lee, instructed by Taylor Walton LLP for first respondent

The second and third respondents in person for in person

Hearing Hearing date: 14 August 2015

JUDGMENT

Senior Judge Lush:

[1]This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney (‘LPA’) for property and financial affairs.

The background

[2]ARL was born on 10 April 1929.

[3]She used to live in Wheathampstead, Hertfordshire, but since 5 September 2012 she has resided in a nursing home about fifteen miles away in Radlett.

[4]She married in 1953. Her husband was a London black cab driver and they moved to Hertfordshire to run a social club. He died in 2005.

[5]She adopted two children:(a) JJT, who was born on 11 May 1956, and lives in Brockenhurst, Hampshire; and

(b) ICL, who was born on 8 August 1963, lives in Harpenden, and describes himself as an independent education consultant.

[6]On 23 August 2012 ARL executed an LPA for property and financial affairs, in which she appointed her son and daughter jointly and severally to be her attorneys.

[7]Lyn Parkin, an estate practitioner with Rowlington Tilley & Associates, Will & Probate Legal Services, Harpenden, drew up the document, witnessed ARL’s signature, and was the Part B certificate provider – the person who certifies that the donor has capacity to create the LPA.

[8]The LPA was registered by the Office of the Public Guardian (‘OPG’) on 30 October 2012.

The application

[9]On 5 December 2014 the Public Guardian applied to the Court of Protection for the following

[10]The application was accompanied by a witness statement made by Sophie Farley, who had investigated the case at the OPG. To summarise, she said that:(a) On 18 July 2014 concerns were raised with the OPG regarding ICL’s management of his mother’s property and financial affairs.

(b) There was a debt of £39,000 in respect of unpaid care fees, which ICL was unwilling to pay because he believed that his mother should be receiving NHS Continuing Health Care.

(c) ICL was also in dispute with Hertfordshire County Council and claimed that ARL had been placed in the nursing home in Radlett without his consent. He had instructed Newlaw Solicitors in Cardiff to apply for compensation on his behalf.

(d) He was not providing ARL with an adequate personal allowance.

(e) It was not known known when he had last visited her, but it was thought to have been some time in 2013.

(f) In May 2013 ICL sold ARL’s house in Wheathampstead for £265,000 and used £174,950 from the net proceeds of sale to purchase a flat in his own name in Wheathampstead High Street. The OPG had carried out a search at the Land Registry, which confirmed that ICL is the registered proprietor.

(g) The difference of approximately £90,000 between the net proceeds of sale and the purchase price of the flat had been credited to ICL’s business account, rather than to an account in ARL’s name.

(h) The OPG wrote to ICL on 4 August 2014 asking him to account fully for his dealings with his mother’s finances.

(i) He replied a fortnight, on 18 August, later saying that he had far too many other things to deal with at that time.

(j) He said he was going to meet someone from Labrums Solicitors for advice on his responsibilities under the LPA, “which are now becoming too onerous.”

(k) He has only produced bank statements from October 2012 to October 2013, and an inspection of the bank statements he did produce revealed that he had spent at least £6,641 in a way that was not in ARL’s best interests.

(l) He had failed to account fully for his dealings.

(m) A Court of Protection General Visitor (Christine Moody) saw ARL on 15 August 2014 and confirmed that she has dementia and lacks the capacity to revoke the LPA.

Order

[11]On 15 December 2014 I made an order requiring:(a) the Public Guardian to serve the papers on the attorneys by 24 December 2014;

(b) the attorneys to file and serve their responses by 16 January 2015; and

The objection

[12]On 6 January 2015 Lyn Parkin of Rowlington Tilley & Associates – who drew up the LPA and acted as the certificate provider - filed an acknowledgment of service and said that she wished to be joined as a party. She also filed a witness statement, in which she said that:

“I am of the opinion that it is in ARL’s best interests to have the LPA revoked and that her daughter JJT and myself be appointed as co-deputies and that ICL be accountable for his actions and reimburse his mother’s estate in full.”

[13]JJT filed a witness statement on 5 January saying that she supported the Public Guardian’s application. Her relationship with her brother had completely broken down. He never let her have access to her mother’s bank accounts and she had left the management of ARL’s finances entirely to him.

[14]Taylor Walton LLP Solicitors, 28-44 Alma Street, Luton LU1 2PL act for ICL, who on 15 January 2015 completed an acknowledgment of service, in which he opposed the Public Guardian’s application. He said:

“I disagree that I have behaved, am behaving, or have proposed to behave in a way that contravenes my authority or is not in the best interests of ARL as defined by section 22(3)(b) Mental Capacity Act 2005. I have tried to exercise my duties as attorney of ARL in her best interests at all times. I admit that I have had to use some of ARL’s funds for my own personal affairs, but this was only ever intended as a temporary measure due to my personal circumstances.”

[15]ICL’s acknowledgment of service was accompanied by two witness statements dated 15 and 16 January 2015. In the statement dated 15 January he said:(a) Before ARL was placed in care, while she was still living in her own home in Wheathampstead, he did everything he could to ensure that she had the best possible care.

(b) He is self-employed and found that caring for his mother was becoming increasingly time-consuming.

(c) As a result of his mother being placed in care, he had been unable to focus on his work for the last two years, and this had put a great strain on him both financially and emotionally.

(d) His sister had been of no assistance whatever.

(e) Until completion of the purchase of the flat in the High Street had taken place, he hadn’t realised that the property was held in his name. He said, “I have subsequently made enquiries of the conveyancer who dealt with the purchase of the property, who confirmed that, as I completed a summary of instructions in my own name, this is the name in which the property was purchased.”

(f) He said it was always the intention that this property was purchased for the benefit of his mother and that he would be happy for the property to be transferred into her name.

[16]He went on to say that: “I admit that some of the remaining funds have been used for personal outgoings for me and my family. This was because of difficult personal circumstances. As previously stated, I am fully prepared to pay back the entire amount that I have borrowed from my mother as soon as the sale of my former matrimonial home has completed. In the interests of complying with my duties as an attorney, I set out as far as possible an honest account of the remaining funds:(a) I was caught drink driving in February 2013 and accordingly I borrowed £3,380 from my mother’s funds to cover my legal costs of defending my position (£2,640) and other related costs such as court fees (£500) and a penalty fine (£240). I attach letters confirming these costs sent to me by Freeman & Co. Solicitors and Sweetmans Solicitors.

(b) I ran out of money in April 2013 and had to borrow £7,500 from a friend, Mrs Pollard, in order to keep afloat financially. I repaid my friend this sum from my mother’s funds.

(c) I was required to pay a deposit of $1,500 (approx. £995) to secure my son’s place at university in the USA and I borrowed my mother’s funds to cover this.

(d) I was also required to cover my son’s college fees whilst he was studying in the USA totalling £7,500. I paid these fees in instalments from my mother’s funds.

(e) I sent £300 to my son on a monthly basis whilst he was living in the USA. These payments totalled £2,400.

(f) I also paid for my son’s flights to and from the USA during his year abroad and also for flights for myself to visit him in the USA totalling £2,774.

(g) During a visit to the USA to see my son in August 2013, I spent a total of $630 (approx. £418) on accommodation and £500 on sundry expenses.

(h) I also paid for my son’s car insurance from my mother’s funds totalling £4,757.17.

(i) During the summer of 2013 I borrowed £6,300 of my mother’s funds for works to my former matrimonial home.

(j) As previously mentioned, JJT borrowed £2,500 of my mother’s funds.

(k) I cannot specifically account for the remainder of the £90,050. However. I am sure that, save for the £2,500 borrowed by my sister, it would have been used by me in order to cover the living costs of my family.

Order

[17]On 24 June 2015 I made an

[18]Witness statements were filed by:(a) Sophie Farley of the OPG on 14 July 2015;

(b) Lyn Parkin on 28 July 2015; and

Application notice

[19]On 11 August 2015, only three days before the hearing, ICL’s solicitors filed an application notice in which they sought an order that the hearing be adjourned because:(a) ICL has been suffering from stress; has been prescribed Diazepam by his GP, and is in no fit state to attend the hearing.

(b) the order of 24 June 2015 encouraged the parties to resolve this matter amicably through mediation, but the Public Guardian had made no attempt to do so.

(c) ICL has been corresponding with Hertfordshire County Council to ascertain whether he may have grounds to bring a claim against the Council for the unlawful deprivation of ARL’s liberty.

[20]I refused to allow an adjournment because:(a) I did not consider that it was in ARL’s best interests to delay the resolution of this matter any longer. Serious concerns about ICL’s conduct were raised over twelve months ago.

(b) There was no need for ICL actually to attend the hearing. It was not intended that he should give evidence or be cross-examined. These proceedings are essentially inquisitorial, rather than adversarial, and the court already had most of the evidence before it in written form.

(d) It had been an error on my part to include a mediation clause in the order of 24 June 2015. Whereas mediation may be appropriate in disputes regarding the appointment of an attorney or a deputy, it is generally unsuitable in safeguarding proceedings, such as these.

The hearing

[21]The hearing took place on Friday 14 August 2015 and was attended by:(a) Nadia Dhillon of the OPG;

(b) Annabel Lee, counsel, 39 Essex Chambers, and Hannah Borner of Taylor Walton LLP, Solicitors;

(d) Lyn Parkin.

[22]Annabel Lee said that it would be a grave breach of ARL’s rights under

Article 8 of the European Convention on Human Rights

to revoke an LPA which she had made when she had capacity to do so. Her present wishes and feelings can be found in an assessment of capacity made by Dan Machin of Hertfordshire Social Services on 30 July 2014, in which she said “I like my son managing my money.”

[23]Annabel Lee stated that, if the court considered that it would be a proportionate response to revoke the LPA, then it should appoint ICL and a partner in Taylor Walton to be joint deputies. ICL would oppose the appointment of Lyn Parkin, because he doesn’t get on with her, or JJT, because of the conflict within the family. The only other alternative would be to appoint an independent deputy.

[24]Lyn Parkin was quick to point out that, in the capacity assessment dated 30 July 2014, immediately preceding the words “I like my son managing my money” were sentences saying that “ARL is unable to retain or recall where she is or why. When we discussed finances ARL said “I manage my own money at the post office”.” In the same capacity assessment ARL said, “There is plenty of money in my purse.” She doesn’t have a purse in the nursing home. She has absolutely no understanding of her finances and no awareness that her son has seriously mismanaged her finances.

[25]Lyn Parkin has visited ARL several times and is satisfied that at present she doesn’t meet the criteria to qualify for NHS Continuing Health Care (‘CHC’). ICL’s claim that ARL is entitled to CHC is entirely without merit and it is a waste of her resources to employ a solicitor to pursue such a claim.

[26]Nadia Dhillon stated that, although the flat in the High Street had been purchased with ARL’s funds with a view to generating an income to pay towards her care fees, and although the property is currently let, none of this income has been received by ARL or applied for her benefit. It has simply become another income stream for ICL.

[27]Ms Dhillon confirmed that, although the Public Guardian had originally asked for a panel deputy be appointed, he had no objection to the appointment of JJT and Lyn Parkin as joint deputies. The Public Guardian would, however, object to the appointment of ICL and a partner in Taylor Walton as deputies, because ICL has shown himself to be completely unreliable and untrustworthy and Taylor Walton had signally failed to safeguard ARL’s interests and position in relation to the property sale and purchase.

[28]JJT repeated that she had left the management of ARL’s finances entirely to her brother, which, with hindsight, had been an error of judgment on her part. She said her brother hadn’t had a proper job for years and that he had been living off his mother’s funds because he claimed “it’s our inheritance”.

The law relating to the revocation of an LPA

[29]The Public Guardian’s application was for an order under section 22(4)(b) of the Mental Capacity Act 2005 (‘MCA’) revoking and directing him to cancel the registration of the LPA.

[30]Section 22 of the MCA 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]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.”

[33]In Re J [2011] COPLR Con Vol 716, at paragraph 75, Her Honour Judge Hazel Marshall QC suggested that the court should take the following approach when considering an application for the revocation of an LPA based on the donee’s behaviour:

“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.”

[34]Section 22(5) of the MCA provides that:

“If there is more than one donee, the court may under subsection (4)(b) revoke the instrument or the lasting power of attorney so far as it relates to any of them.”

[35]In practical terms, in this case, the court could find that ICL had behaved in a way that had contravened his authority or was not in ARL’s best interests, but that JJT had not, and therefore revoke the LPA insofar as it appoints ICL to act as an attorney and direct the OPG to limit the registration of the power to JJT acting as the sole attorney.

Decision

[36]It is the Public Guardian’s view, with which I concur, that in a dispute regarding NHS Continuing Healthcare, an attorney acting on behalf of an incapacitated donor has a duty to pursue all the standard dispute resolution procedures and, if need be, refer the matter to the Parliamentary and Health Service Ombudsman. While attempts to resolve the dispute are taking place, the attorney should continue to pay the donor’s care fees. If it transpires that the donor qualifies for NHS Continuing Healthcare, and has been eligible for some time, the NHS will refund any overpayment of care fees.

[37]In this case, ARL’s placement in the nursing home at Radlett was in jeopardy and there was a serious risk that she would be evicted because of ICL’s wilful refusal to pay her care fees. She is settled and content at the nursing home and any action or inaction that might prejudice her placement is not in her best interests.

[38]As is frequently observed in cases of this kind, a failure to pay care home fees, a failure to provide an adequate personal allowance, a failure to visit, and a failure to produce financial information to the statutory authorities, go hand in hand with the actual misappropriation of funds.

[39]In this case, ICL’s misappropriation of funds includes, but is not limited to:(a) The purchase of a property in his own name, using £174,950 of his mother’s funds. One of my particular concerns is that ICL is currently going through an acrimonious divorce, and there is a possibility that ARL’s funds could somehow, inadvertently, become part of the settlement in the matrimonial proceedings.

(b) Pocketing the rental income from the property for the last two years.

(d) ICL’s admission at paragraph 16(k) that he cannot specifically account for the remainder of the £90,500, “However, I am sure that, save for the £2,500 borrowed by my sister, it would have been used by me in order to cover the living costs of my family.”

[40]I have no confidence in ICL when he says, “I am fully prepared to pay back the entire amount I have borrowed from my mother as soon as the sale of my former matrimonial home has completed.” He made a similar promise on 15 January 2015, when he offered to transfer title to the flat in the High Street from his name into his mother’s name, but has done nothing about it during the last seven months.

[41]I find it incredible that ICL is ready, willing and able to pursue a claim against Hertfordshire County Council for unlawfully depriving ARL of her liberty, yet is pumped up with tranquillizers and was in no fit state to attend the hearing in this matter.

[42]I also find it curious that he has instructed so many different firms of solicitors or other providers of legal services at his mother’s expense, often to defend the indefensible:(a) Rowlington Tilley & Associates drew up the LPA.

(b) He was going to meet someone from Labrums Solicitors, St Albans, to advise him on his responsibilities under the LPA.

(c) NewLaw Solicitors, Cardiff, were advising him on his dispute with Hertfordshire County Council regarding ARL’s placement in the nursing home in Radlett and were also pursuing a claim against the NHS for Continuing Health Care.

(d) Freeman & Co., Solicitors, Manchester – The Home of Mr Loophole – had been instructed to defending him when he was prosecuted for drink driving.

(e) He also instructed Sweetmans, another firm of specialist drink driving solicitors.

(f) Taylor Walton acted for him in the sale of his mother’s house and the purchase of the flat in the High street, and in the proceedings brought against him by the Public Guardian.

[43]I wonder whether this is a smokescreen to ensure that no one firm or company is fully aware of the extent of his ineptitude and deceit.

[44]I am satisfied that ICL has behaved in a way that both contravenes his authority and is not in ARL’s best interests.

[45]I am also satisfied that ARL is unable to revoke the LPA herself. I accept the report, dated 28 August 2014, of the Court of Protection Visitor, Christine Moody, who said that:

“The donor does not appear to have capacity to deal with the concerns that have been raised herself. She has dementia, which is an impairment of the mind or brain. As a result the donor cannot understand, retain or weigh up the information relevant to this decision. The donor had no awareness of her financial situation. She had no knowledge or understanding of the attorney’s role. She told me her husband was looking after her finances as he always had. She was able to recollect her daughter JJT but could not recollect her son ICL. I tried to explain the role of the attorney several times in simple terms but she could neither comprehend nor retain the information.”

[46]

Article 8 of the European Convention on Human Rights

1950 states that: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

[47]In this case, I am satisfied that the revocation of the LPA is in accordance with the law and is necessary for the prevention of crime.

[48]Any infringement of Article 8 is mitigated to some extent by the continued involvement of JJT in the administration of ARL’s property and financial affairs. As I mentioned in paragraph 35 above, I could revoke ICL’s appointment as attorney and direct the Public Guardian to limit the registration of the LPA to JJT acting as the sole attorney. However, JJT would prefer to share the responsibility of managing her mother’s affairs jointly with Lyn Parkin, partly because Ms Parkin is on the spot, whereas JJT lives in the New Forest, 100 miles away, and partly because legal expertise will be required to unravel all the problems created by ICL.

[49]In her witness statement, Lyn Parkin said that:

“If I am appointed co-deputy I will visit ARL on a monthly basis and build up a relationship with the care home staff to ensure that her best interests and care are addressed accordingly.”

[50]In her second witness statement dated 14 July 2015, Sophie Farley stated that:

“Lyn Parkin has acted as a joint deputy for another client since 22 January 2014. She has submitted annual reports and an assurance visit has been carried out. … There are no concerns identified from the report or assurance visit. The Public Guardian does not object to the application by Lyn Parkin and JT to become deputies for ARL providing that JJT satisfactorily addresses the sum of £2,500 which she is alleged to have borrowed from ARL.”

[51]Accordingly, I shall revoke the LPA and appoint Lyn Parkin and JJT to be ARL’s joint deputies for property and affairs, and I shall leave it to Lyn Parkin to satisfy the Public Guardian with the arrangements regarding the money JJT has borrowed from her mother.

Costs

[52]Rule 156 of the Court of Protection Rules 2007 - the general rule for costs in property and affairs cases - is that the costs of the proceedings are payable by the person to whom the proceedings relate, or charged to his estate.

[53]However, rule 159 allows the court to depart from rule 156 if the circumstances so justify. This involves having regard to all the circumstances, including:(a) the conduct of the parties; and

(b) whether a party has succeeded on part of his case, even if he has not been wholly successful.

[54]In this case a departure from rule 156 is justified.

[55]ICL’s conduct has been appalling and, like so many other proceedings he has been involved in, he has been unsuccessful. I don’t see why ARL should be expected to pay the costs of defending behaviour that has been inexcusable and contrary to her best interests.

[56]If, as ICL said in his letter to the OPG dated 18 August 2014, his responsibilities under the LPA were becoming too onerous, why didn’t he disclaim his appointment then, instead of opposing the Pubic Guardian’s application and allowing these proceedings to proceed to an attended hearing twelve months later at considerable expense?

[57]I make no order for ICL’s costs and I direct that Lyn Parkin’s costs are to be assessed on the standard basis and paid from ARL’s estate.

order

1. 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 appointing ICL and JJT as joint and several attorneys made by ARL on 23 August 2012 and registered by the Office of the Public Guardian on 30 October 2012. 2. An order directing that a panel deputy invited to make an application for appointment as deputy to make decisions on behalf of ARL in relation to her property and affairs. 3. An order directing ICL to provide the new deputy with full details of ARL’s financial affairs, specifically details regarding the proceeds from [her house in Wheathampstead]. order:(a) joining Lyn Parkin as a party to the proceedings as the third respondent;

(b) requiring the Public Guardian to file and serve a response to the objections by 17 July;

(d) listing the matter for an attended hearing on Friday 14 August 2015 with a time estimate of ninety minutes; and

(e) stating that, “if the parties are able to resolve this matter amicably by agreement or through mediation, as soon as practicable the Public Guardian should file an application notice (COP9) together with a consent order requesting that the hearing be vacated.” Witness statements