RG, Re [2015] EWCOP 66

IMPORTANT NOTICEThis 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 12690370[2015] EWCOP 66
COURT OF PROTECTION
Date 13 October 2015
MENTAL CAPACITY ACT 2005
Re RG
First Avenue House
42-49 High Holborn
London WC1V 6NP
Before
SENIOR JUDGE LUSH
Between
NORTHAMPTONSHIRE COUNTY COUNCILApplicant(1) RGRespondents(2) JJGRespondent(3) LERespondent(4) GGRespondent(5) JGRespondent
Martin Kingerley, instructed by Northamptonshire County Council for ApplicantThe fourth respondent in person and unrepresented for in personThe first, second, third and fifth respondents neither present nor representedHearing Hearing date: 30 September 2015
JUDGMENTSenior Judge Lush:
[1]This is an application by Northamptonshire County Council for the court to revoke an Enduring Power of Attorney (‘EPA’) and to appoint a professional deputy to manage the donor’s property and affairs in place of the attorney.

The background

[2]These proceedings relate to Rosemary, who was born on 6 February 1933.[3]She used to live in her own house in Kettering, but since 20 March 2015 she has resided in a care home in the same town.[4]Her husband, who died in 2007, was a hairdresser. She was also a hairdresser, but changed career in midlife and went on to become a matron in a care home.[5]She had four children:(a) Gary, who was born on 28 June 1955 and lives in Kettering. He is a car mechanic.(b) Keith, who was born in 1956 and died of a stroke in 2005. His widow lives in Northampton and, although she was named as the fifth respondent, she has taken no part in these proceedings.(c) Julian, who was born on 15 September 1966, lives in Kettering, and is currently unemployed. He is the second respondent in these proceedings.(d) Lisa, who was born in 1968 and doesn’t wish her address to be disclosed to either of her brothers.[6]On 18 November 2005 Rosemary executed an EPA in which she appointed her son, Julian, to be her sole attorney. The EPA was drawn up by a solicitor.[7]There have been concerns about Rosemary’s mental health since June 2014. She was admitted to Kettering General Hospital on 5 February 2015 and a formal diagnosis of Alzheimer’s dementia was made by a consultant in old age psychiatry, Dr Shruti Lodhi, on 12 February 2015.[8]Rosemary’s house is worth about £140,000, in addition to which she has life savings of approximately £100,000.[9]She has a number of debts, which haven’t been fully quantified yet, but are probably in the region of £30,000. These include arrears of care home fees that have accumulated over the last six months. The fees are currently £850 a week.

The application

[10]On 18 May 2015 Northamptonshire County Council (‘the Council’) made an application for the court to appoint Barry Charles Rogers of Tollers, Solicitors, 2 Exchange Court, Cottingham Road, Corby, Northamptonshire NN17 1TY, as Rosemary’s deputy for property and affairs.[11]The Council had received an anonymous telephone call alleging that Rosemary’s sons were selling her personal effects and were planning to let her property to a tenant. The police were involved in this matter, though apparently they never interviewed either Julian or Gary and there is no ongoing investigation.[12]On 1 June 2015 Neil Ross, an authorised officer of the court, made an interim order authorising the Council to secure Rosemary’s property and to change the locks.

The objection

[13]On 12 June 2015 Julian completed an acknowledgment of service, in which he objected to the Council’s application. He said:
“The application is not necessary. Rosemary entered into an Enduring Power of Attorney on the 18th November 2005. That power was submitted to the Office of the Public Guardian on the 29th May 2015. Copies attached. There is no need for this application.”

Orders

[14]On 3 July 2015 I made an[15]On 17 July 2015 the Council applied for an order suspending the EPA, which had been registered by the Public Guardian on 6 July 2015, and authoring the Council to prevent the disposal of Rosemary’s property pending further order of the court. Such an order was made on 20 July 2015.

Witness statements

[16]Each of the following employees of the Council filed a witness statement:(a) Sarah Dawson, social worker, dated 24 June 2015, which set out the history of the Council’s involvement in this matter;(b) Stephen Edwards, team manager, dated 5 August 2015, which described his communications with the letting agency that Julian had instructed to let Rosemary’s property; and(c) Diane Batts, care manager, dated 14 August 2015, which described a number of safeguarding alerts and best interests meetings.[17]At paragraph 16 of her witness statement Sarah Dawson said as follows:
“It appears that Rosemary’s sons have neglected their mother’s needs in relation to her heath and wellbeing by allowing the home to fall into a poor state of repair, and not following recommendations made by the community mental health and adults social care to arrange support and care at home. In fact, it seems that they moved in with her for a short period, but then moved out leaving her alone in a home with no hot running water, and a large dog to care for. Gary’s suggestion that he live with his mother was considered, but ruled out for these reasons. Furthermore Rosemary would not benefit from seeing other family members if her son lived in the family home as some family members have stated they would be uncomfortable if Gary were present due to conflict and alleged threats of violence from him.”
[18]On 22 August 2015 Rosemary’s daughter, Lisa, made a witness statement, in which she said as follows:
“I’m writing this statement regarding the power of attorney of my mother Rosemary. I would like to express my concerns on this matter, on the relationship between me and my brothers over the last several years. Whilst my brother Julian was living at my mum’s address there was several incidents regarding the police, causing my mother mental stress due to unnecessary behaviour due to heavy drinking leading to violence, causing my mum to be walking the streets at 11 o’clock pm at night, and my son having to pick her up on occasions as she was too scared to return to her own home. Shortly after this Julian and girlfriend left the home, which then my older brother Gary moved into. After a short while of living there at the property, he decided to strip the bathroom to pieces and replace the bath with a shower. But instead left her with no washing facilities i.e. bath, no hot water, no central heating for several weeks. He also had a dog at the home which was locked upstairs in a box room with no water or food and my mum was expected to look after at 80 years of age, i.e. walk her, buy food etc, which the dog belongs to Julian and did not take her from home when he left. The dog was very underweight to the point of seeing her ribs. This was very upsetting to see. Shortly after this Gary and my mum had an argument regarding payment of the bathroom which caused him to move out leaving my mum to live in this condition. Therefore myself and my family felt we needed to take over these matters. We went in and cleaned the house which was in a very bad condition and not a place for a lady of her age to live. My daughter Sherrie took the dog away from the home and to this day still has her. Shortly around Christmas time my mum started to become unwell where her legs became swollen and breathing problems, and was admitted to Kettering Hospital, where heart failure was diagnosed. A meeting was arranged. We all attended and a decision was made for my mum to go into a care home. But my brother Gary wanted to look after her at home, but we all felt this would not be the right move for her. My mum went to [the care home] in Kettering and has been there since. Following a call from my brother Julian, I was informed he was given power of attorney years ago, which during all this time I was not aware of. I contacted Diana Batts at Kettering Hospital (care worker) to inform her of this. After receiving several messages of great concern regarding my mother’s house being put up for rent and the contents being sold on Facebook and car boot sales, a family friend rang the police, which I gave a statement what had taken place. These are just a few of events and abuse that my mum and myself had sustained in a short period of time. This is why I feel very strongly that this matter of power of attorney, the selling of her belongings out of the home and trying to rent the house out was a very premature situation. My poor mum, as I know to this day, has been left with a handful of clothes and a few photos from her home, which is nothing to show for 82 years of life. I feel the power of attorney should be taken over by the authorities. Many thanks to whom this concerned.”
[19]Neither Julian nor Gary filed a further witness statement.

The Council’s submissions

[20]The Council’s in-house legal team instructed Mr Martin Kingerley, barrister, 36 Bedford Row, who in his position statement dated 30 September 2015 stated as follows:
“The local authority asks the court to exercise the powers conferred by MCA2005 Schedule 4 paragraph 16(4)(g) to cancel registration of the EPA (as registered on 6.7.15) and to revoke any powers created by that instrument. In summary, the basis on which the court is urged to adopt the path as outlined above is as follows: (1) Pursuant to section 4 MCA 2005 any attorney (whether LPA or EPA) must act in accordance with section 4 MCA and comply with the statutory Code of Practice and, therefore, must always act in the donor’s best interests. (2) The second respondent (the sole attorney within the EPA) has manifestly failed to act in Rosemary’s best interests on numerous occasions since Rosemary came to the attention of the local authority in June 2014. In particular the second respondent has: (a) failed to ensure that Rosemary was provided with the care she required to meet even the most basic care needs despite his awareness of her need for such care; (b) left Rosemary without any or any appropriate support, care, assistance and basic provisions (including appropriate bathing and/or washing facilities) on a regular basis between November 2014 and February 2015; (c) physically removed himself from Rosemary’s property despite being fully aware of her deteriorating mental health and physical care needs; (d) sought to sell Rosemary’s goods and furniture shortly after her move into a care home; (e) sought to let Rosemary’s property shortly after her move into a care home; (f) acted otherwise, in light of the above, than in accordance with her best interests and arguably in a manner which was contrary to her best interests. (3) In the premises, the local authority submits that it would be inappropriate for the court to permit the second respondent to act in accordance with the powers purportedly conferred on him by the EPA dated 18.11.05. (4) Instead the benefits of the appointment of a deputy are manifold. Notwithstanding the issues which arise and are highlighted above, any appointed deputy will be able to rise above the inter-sibling animosity and make appropriate decisions on Rosemary’s behalf and, of course, in accordance with her best interests. The court is respectfully requested to make the order sought by the applicant on behalf of and for the benefit of Rosemary.” (1) Pursuant to section 4 MCA 2005 any attorney (whether LPA or EPA) must act in accordance with section 4 MCA and comply with the statutory Code of Practice and, therefore, must always act in the donor’s best interests. (2) The second respondent (the sole attorney within the EPA) has manifestly failed to act in Rosemary’s best interests on numerous occasions since Rosemary came to the attention of the local authority in June 2014. In particular the second respondent has: (a) failed to ensure that Rosemary was provided with the care she required to meet even the most basic care needs despite his awareness of her need for such care; (b) left Rosemary without any or any appropriate support, care, assistance and basic provisions (including appropriate bathing and/or washing facilities) on a regular basis between November 2014 and February 2015; (c) physically removed himself from Rosemary’s property despite being fully aware of her deteriorating mental health and physical care needs; (d) sought to sell Rosemary’s goods and furniture shortly after her move into a care home; (e) sought to let Rosemary’s property shortly after her move into a care home; (f) acted otherwise, in light of the above, than in accordance with her best interests and arguably in a manner which was contrary to her best interests. (3) In the premises, the local authority submits that it would be inappropriate for the court to permit the second respondent to act in accordance with the powers purportedly conferred on him by the EPA dated 18.11.05. (4) Instead the benefits of the appointment of a deputy are manifold. Notwithstanding the issues which arise and are highlighted above, any appointed deputy will be able to rise above the inter-sibling animosity and make appropriate decisions on Rosemary’s behalf and, of course, in accordance with her best interests. The court is respectfully requested to make the order sought by the applicant on behalf of and for the benefit of Rosemary.”

The hearing

[21]The hearing took place on Wednesday 30 September 2015 from 11 until 12.10 and was attended by:(a) Martin Kingerley, his instructing solicitor, Sharon Gibbons of Northamptonshire County Council, and the three Council employees who had provided witness statements: Sarah Dawson, Stephen Edwards, and Diane Batts; and(b) Gary, who was unrepresented but was accompanied by Mike Trotman of the Personal Support Unit (PSU).[22]Gary apologised for the non-attendance of his brother, Julian, who had an appointment at Kettering General Hospital that morning and was also nervous about attending a court hearing, anyway.[23]I enquired about the precise dates on which Julian and, subsequently, Gary were living with their mother. Gary said that Julian and his girlfriend had lived with her for about two months during August to October 2014 and that he had moved in after his mother had been admitted to the care home in March 2015 and stayed there until the end of May. There is clearly a conflict between his evidence and Lisa’s with regard to these dates. There is no need for me to make any formal finding of facts on this issue, but I will say that Gary struck me as being a candid witness and on occasion his candour worked to his disadvantage.[24]He said that his mother had never used the bath since moving into the property seven years ago, following his father’s death. She preferred a shower, which is what she had been used to in her previous home.[25]In response to my enquiry about his and Julian’s relationship with their sister Lisa, Gary said, “My sister and myself can’t abide each other. If she was dying in the street, I’d leave her there.” He thought that Julian’s relationship with her may be marginally better.

The law relating to the revocation of an EPA

[26]The Council’s application was originally for the appointment of a deputy for property and affairs. After the EPA had been registered by the Office of the Public Guardian on 6 July 2015, the Council also required an order under paragraph 16(4)(g)of Schedule 4 to the Mental Capacity Act 2005 for the revocation and cancellation of the registration of the EPA.[27]Paragraph 16(4) provides that:
“The court must direct the Public Guardian to cancel the registration of an instrument registered under paragraph 13 in any of the following circumstances - (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.” (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.”
[28]Paragraph 16(5) goes on to state that:
“If the court directs the Public Guardian to cancel the registration of an instrument on being satisfied of the matters specified in sub-paragraph (4)(f) or (g) it must by order revoke the power created by the instrument.”
[29]There was a series of reported decisions on the unsuitability of an attorney about 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(c) Re F [2004] 3 All ER 277.[30]All three cases involved disputes between siblings over the management of their mother’s property and financial affairs, and this line of authorities culminated in the following statement of Mr

Justice Patten in Re F, [2004] 3 All ER 277, 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.”

Decision

[31]I am going to allow the Council’s application and revoke the EPA on the ground that, having regard to all the circumstances, Julian is unsuitable to be his mother’s attorney.[32]I accept Mr Kingerley’s submissions that Julian is unsuitable because he:(a) failed to ensure that Rosemary was provided with the care she required to meet even the most basic care needs, despite his awareness of her need for such care;(b) left Rosemary without any or any appropriate support, care, assistance and basic provisions on a regular basis between November 2014 and February 2015; and(c) physically removed himself from her property despite being fully aware of her deteriorating mental health and physical care needs.[33]In her witness statement Sarah Dawson referred to a telephone conversation she had with Julian on 25 November 2014 when “he confirmed that his mother has savings over the LA threshold and he was happy to arrange private care.” However, Julian did nothing. He made no arrangements for private care and his mother’s condition progressively deteriorated.[34]It would seem that Julian’s main problem is inertia and a lack of any sense of urgency. Doing nothing, or doing the bare minimum, or even choosing the cheapest conceivable option, was never likely to be in his mother’s best interests.[35]I do not, however, accept Mr Kingerley’s submissions that Julian is unsuitable to be his mother’s attorney because he:(a) disposed of her goods and furniture shortly after her move into a care home; and(b) let her property shortly after her move into a care home.[36]These functions are entirely within the scope of the authority of an attorney acting lawfully under an EPA, and the decision to let the property rather than sell it was a sensible commercial decision based on the likelihood that there would be a better return (£650 per calendar month) than if the net proceeds of sale of, say, £140,000 were invested with a bank or building society. The rate of interest required to generate a similar level of gross income would be around 5.5%.[37]Julian’s management of his mother’s property provides another illustration of his inaction. The property is uninsured. According to Gary, his mother never insured it, though he was highly critical of the letting agency for not insuring it now, despite a promise to do so.[38]While she still had capacity to make decisions regarding the management of her property and financial affairs, Rosemary was at liberty to make unwise decisions, such as deciding not to take out buildings and contents insurance. However, as soon as she was ‘becoming’ mentally incapable of making such decisions, Julian had a duty to apply to the Office of the Public Guardian to register the EPA, so that he could make these decisions on her behalf and act in her best interests.[39]As Mr Justice Lewison (as he then was) noted in Re P (Statutory Will) [2009] EWHC (Ch); [2009] COPLR Con Vol 906, at paragraph 42:
“I would add that, although the fact that P makes an unwise decision does not on its own give rise to any inference of incapacity (s. 1(4)), once the decision-making power shifts to a third party (whether carer, deputy or the court) I cannot see that it would be a proper exercise for a third party decision-maker consciously to make an unwise decision merely because P would have done so. A consciously unwise decision will rarely, if ever, be made in P’s best interests.”
[40]There was an extensive period from the end of June 2014 until 20 July 2015 when Julian’s authority as attorney under the EPA extended to making sure that his mother’s property was fully insured, and this includes the period when the application to register the EPA had been made, when in most other respects the attorney’s powers are suspended until the instrument is registered. Paragraph 1(2)(a) of Schedule 4 to the Act states that “where the attorney has made an application for registration of the instrument then, until it is registered, the attorney may take action under the power to maintain the donor or prevent loss to his estate.” But, again, Julian did nothing. Even his application to register the EPA was reactive, rather than proactive, and seems to have been prompted by the Council’s application to the court in May 2015 for the appointment of a deputy.[41]During the hearing Gary produced a blue plastic bag full of papers. This came as a complete surprise, not only to me, but also to the Council representatives and Mr Kingerley. Apparently, these papers related to debts in his mother’s name, which Gary claimed had been incurred not by her, but by his sister, Lisa. They are mainly catalogue debts and he reckoned that they total about £10,000.[42]This is where the hostility between the siblings is likely to have an adverse impact on the proper administration of Rosemary’s estate. It may be necessary to commence legal proceedings against Lisa or, at the very least, to reach an out-of-court settlement and repayment plan regarding these debts. I am sure it would be in Rosemary’s best interests for an independent third party to handle these delicate negotiations rather than either of her sons, by whom Lisa clearly feels bullied and intimidated.[43]There is one further point. Attorneys cannot usually delegate their authority to someone else. They must carry out their duties personally. Of course, they may seek professional or expert advice when appropriate (for example, investment advice from a financial adviser or legal advice from a solicitor), but they cannot as a rule allow someone else to make a decision that they have been appointed to make. I was left with the distinct impression that Julian had delegated his decision-making functions to his brother, Gary, which may be yet another illustration of his inertia.[44]So, having regard to all the circumstances – the inertia, the neglect, the hostility within the family, and the delegation of his decision-making responsibilities – I am satisfied that Julian is unsuitable to be Rosemary’s attorney and I shall revoke the EPA and direct the Public Guardian to cancel its registration. I shall also make an order appointing Barry Rogers of Tollers Solicitors as Rosemary’s deputy for property and affairs.

order

(a) consolidating the Council’s application for the appointment of a deputy with any objections to the registration of the EPA;(b) setting out a timetable for filing and serving evidence and submissions; and(c) listing the matter for hearing on Wednesday 30 September 2015.