SB, Re [2015] EWCOP 7

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 7

Case No 12525625

COURT OF PROTECTION

Date 12 February 2015

MENTAL CAPACITY ACT 2005

First Avenue House

42-49 High Holborn,

London WC1V 6NP

Before

Senior Judge Lush

Re SB

Between

THE PUBLIC GUARDIANApplicant

(1) BBRespondents

(2) RBRespondent

(3) WYRespondent

Nadia Dhillon for Public Guardian

The first and second respondents were neither present nor represented

The third respondent in person for in person

Hearing Hearing date: 4 February 2015

JUDGMENT

Senior Judge Lush:

[1]This is an application to revoke a Lasting Power of Attorney for property and financial affairs (‘LPA’) because the attorneys have behaved in a way that contravenes their authority and is not in the donor’s best interests.

[2]It is also a contested application as to who should be appointed as SB’s deputy for property and affairs in place of the attorneys.

Background information

[3]SB was born in 1941 and was formerly a university lecturer.

[4]She was diagnosed with Alzheimer’s dementia in 2009, and was sectioned under the Mental Health Act 1983 in September 2011.

[5]She lives in a nursing home in Leicestershire and her care is publicly funded pursuant to section 117 of the Mental Health Act.

[6]She and her husband divorced in 1984.

[7]She has two sons, who are the first and second respondents in these proceedings:(a) BB, who was born in 1968, and lives in Northamptonshire; and

(b) RB who was born in 1970, and lives in Leicester.

[8]The third respondent, WY, was born in 1947 and is SB’s former neighbour. He describes himself as her unmarried partner.

[9]On 27 July 2010 SB executed an LPA for property and affairs, in which she:(a) appointed her sons jointly and severally to be her attorneys;

(b) did not appoint a replacement attorney; and

(c) named Sandra Young of Salusburys Harding & Barnett, Solicitors, Leicester, as the only person to be notified when an application was made to register the LPA.

[10]Sandra Young witnessed her signature and was the certificate provider.

[11]In September 2011, when SB was sectioned, the attorneys applied to the Office of the Public Guardian (‘OPG’) to register the LPA, and it was registered on 29 November 2011.

The application

[12]On 23 June 2014 the Public Guardian applied to the Court of Protection for the following

[13]The application was accompanied by a witness statement made by Mariam Varachia, an investigating officer with the OPG, who said that:(a) concerns had been raised with the OPG on 18 December 2012.

(b) BB had used £19,038.69 of his mother’s money to pay his farm suppliers.

(d) although SB owns two investment properties, the rental income from them had not found its way into her accounts.

(e) the other attorney, RB, had not engaged with the OPG.

(f) a Court of Protection General Visitor, Keith Charles Robinson, CQSW, had visited SB on 13 February 2013 and concluded that she lacks the capacity to revoke the LPA.

(g) Leicestershire County Council was prepared to act as deputy, but the Public Guardian believes that a panel deputy would be in a better position to manage SB’s property and financial affairs.

[14]On 23 July 2014 I made an order prohibiting any further dealings with SB’s assets, but allowed RB twenty eight days, rather than fourteen, in which to produce an account.

The objections

[15]On 7 October 2014 BB filed an acknowledgment of service in which he stated that he objected to the application. He said:

“I truly believe that we still have the best interest of our Mum at heart both her welfare & finances.”

[16]On the same day, BB wrote a letter to the court, in which he said:

“The first things to point out are this: (a) RB has at no point had any dealings with my mother’s financial affairs. (b) I (BB) have looked after her affairs to the best of my ability, to provide the best return for her income. (c) WY is not my mother’s partner. He has never been engaged to her, married to her, or even so much as lived with her. They are close friends though but that is where the relationship ends. (d) My mother is only expected to live for a short while as after having a fall at the nursing home she has been pretty much bed bound and eats a tiny amount each day. Her doctor does not expect her to be able to make it through until Christmas sadly. (e) We/I have absolutely no faith or trust at all in the good intentions that WY is showing. (f) I still believe we are in the best position to look after my mum’s welfare for the remaining time she has.”

[17]On 22 October 2014 WY filed an acknowledgment of service in which he said he wished to be joined as a party to the proceedings and that he objected to the Public Guardian’s application. He said:

“My connection to SB is having been her unmarried partner since 1998, the year in which we first met. Despite SB’s mental state and her residing in a care home, we can continue to be spiritually very close to each other, and I will remain devoted and committed to her welfare and best interests in the long-term. I strongly believe that the appointment of a third-party organisation as a panel deputy would impede my ability to provide unhindered care and attention to certain aspects of SB’s welfare and interests. The proposed appointee, Leicestershire County Council, is located about 20 miles away and has no emotional ties to SB or knowledge of her day to day requirements which I continue to oversee. Despite others being attorneys, it became my responsibility to purchase and manage her clothes, shoes, toiletries and provide additional evening meals. Having previously looked after certain aspects of SB’s financial affairs prior to the appointment of the existing attorneys, I am already familiar with her financial obligations and would consider myself to be the person best qualified to manage her affairs in both the short and long term. I oppose the order for the proposed panel deputy Leicestershire County Council and seek to replace the panel deputy and to be deputy for SB’s property and financial affairs.”

[18]On 18 December 2014 I listed the matter for an attended hearing on Wednesday 4 February 2015 and set out a timetable for the filing and serving of evidence and submissions.

Further witness statements

[19]On 15 January 2015 Mariam Varachia of the OPG filed a further witness statement, which she concluded as follows:

“The Public Guardian’s position remains the same in that it would be in the best interests of SB for an independent deputy to be appointed as deputy to manage her property and financial affairs given the conflict between WY and BB. It is felt that WY can continue to provide care for SB as he has previously been doing but the appointment of an independent deputy will mean that SB’s finances are managed by an impartial person, and therefore limiting any conflict between those connected personally with SB. The court is requested to revoke and cancel SB’s LPA and consider inviting a panel deputy to be appointed as deputy for SB’s property and financial affairs as being in her best interests. A panel deputy is seen to be more suitable for the role given the size of SB’s estate.”

[20]On 28 January 2015 WY filed a fairly lengthy witness statement to which he exhibited four character references. The following letter, written by Stephen Bunn of Leicestershire County Council, is representative of these testimonials. “I am an approved mental health professional and a registered social worker and initially became involved as social worker for SB in July 2010. I was very involved at the time she was admitted to [address] Psychiatric Unit and on her subsequent move to [her present address]. I would strongly like to support WY’s application to become deputy for her financial affairs. I have always found WY to be a very kind and supportive man who has provided practical assistance from the start. When the home care agency workers were unable to ensure SB was clean and well-dressed it was WY who prompted, cajoled and assisted her to shower. He was the person who would shop for her buying essential clothes and the food she liked. It was WY who supported her through her traumatic admission to hospital and then to residential care. He would visit daily and buy her favourite foods and ready meals and take into her. WY is a property manager and from my observations is a capable and competent professional. I have no doubt he would ensure the proper financial management that deputyship involves. When SB is upset or distressed it is WY who is the person she has turned to as a reliable and trusted friend and supporter. I think it is in her best interests to have him as the person who can quickly and efficiently access her funds to meet her needs. I understand there may be some concern that there could be tension with the previous attorneys, should the court appoint WY as deputy. However my view is that there is unlikely to be any need for contact between them and that SB’s needs are paramount and the benefits of WY as her closest and consistent supporter being deputy outweighs those other considerations. I have consulted Dr Oliver Hands, Consultant Psychiatrist for SB and he confirmed that he thinks WY would be the best person to act as deputy for SB.”

The hearing

[21]The hearing took place on Wednesday 4 February 2015 and was attended by:(a) Nadia Dhillon and Gemma Hopper of the OPG; and

(b) WY.

[22]Although they were aware of the hearing, BB and RB chose neither to attend nor to be represented.

[23]WY confirmed that, despite BB’s premonition that SB would be dead by Christmas, she is still very much alive and has quite a healthy appetite.

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 regarding the LPA

[28]I am satisfied that the attorneys have behaved in a way that contravenes their authority and is not in SB’s best interests for the reasons given by Mariam Varachia in her first witness statement summarised in paragraph 13 above.

[29]BB has abused his position of trust as an attorney by benefitting from his office and by failing to act with honesty and integrity.

[30]RB has failed:(a) to safeguard his mother’s finances from depredation by his co-attorney;

(b) to engage with the OPG; and

[31]I am also satisfied that SB is incapable of revoking the LPA herself. In this respect, I accept the evidence of Keith-Charles Robinson, the Court of Protection Visitor, who said in his report dated 13 February 2013 that:

“There is no doubt that SB does not understand what an LPA for property and finance entails. She had difficulty grasping the concept and was unable to say when she had signed the LPA. She does not have the capacity to manage or instruct others to manage her affairs; she was unable to confirm whether she had given any gifts or amounts of money to her sons and she had no idea of what property she owns or what the balance of her assets are. She would also be unable to address any of the concerns raised.”

[32]Accordingly, I revoke the LPA.

[33]As a result of the revocation, it is necessary to authorise someone to manage SB’s property and financial affairs as her deputy.

The law regarding to appointment of a deputy

[34]Sections 1 to 4 of the Mental Capacity Act 2005 provide that, if a person (‘P’) lacks capacity to make a particular decision at a particular time, then any act done or decision made by someone else on his behalf must be done or made in his best interests.

[35]Section 16(2) of the Act provides that the Court of Protection may make any decision on P’s behalf itself, or it may appoint a deputy to make decisions on P’s behalf.

[36]As in most property and affairs cases, it would be more appropriate for the court to delegate the function of making everyday decisions about SB’s property and affairs to a deputy, rather than expect the court to make every decision itself.

[37]No one has an automatic right to be appointed as deputy. The Court of Protection has discretion as to whom it appoints, but it must exercise that discretion judicially and, having regard to all the circumstances, in P’s best interests.

Decision

[38]I have decided to appoint WY as a deputy to act jointly and severally with a panel deputy, Mrs Ann-Marie Aston of the Wilkes Partnership, Solicitors, Solihull.

[39]I accept the recommendation of SB’s social worker, Stephen Bunn, that WY should be appointed as her deputy because he has been her closest and most consistent supporter. However, I disagree with Mr Bunn that, if I were to appoint WY as the sole deputy, it is unlikely that there would be any need for contact between him and SB’s former attorneys.

[40]It became obvious at the hearing that there are certain duties which WY would prefer to shirk, such as obtaining a further account from the former attorneys and recovering the funds that have been misappropriated.

[41]WY acknowledged that in the past he had got absolutely nowhere whenever he asked BB to reimburse him for the relatively small items of expenditure he had incurred on SB’s behalf, and he recognised that it would be in SB’s best interests for a professional deputy to be appointed to deal with matters of restitution, while he could concentrate on day to day issues. As Stephen Bunn said, I think it is in SB’s best interests to have someone who can quickly and efficiently access her funds to meet her needs.

[42]I had one or two reservations about appointing WY as a deputy. The first was that, when she made her LPAs, SB had not appointed him either as an attorney or as a replacement attorney, or even someone who was entitled to be notified of an application to register the LPAs. However, I am satisfied with the explanation WY gave at the hearing. He would not have expected to be an attorney or a ‘named person’ because BB had arranged for the LPAs to be drawn up, and the last thing that BB would have wanted was to give WY an opportunity to object to the registration of the LPAs.

[43]The second reservation was that, partly because of the additional costs and delay involved, and partly because of the terms of their firm’s indemnity insurance, some professional deputies are unwilling to act either jointly or jointly and severally with a non-professional deputy. However, Mrs Aston has discussed the matter with her partners, who have agreed to her accepting an appointment on a joint and several basis in this matter, and she has filed a deputy’s declaration in which she has consented to act as deputy pursuant to section 19(3) of the Mental Capacity Act 2005.

order

“An order that there be a prohibition against the dealing with or encashment of any investment or other asset held in SB’s name pending the appointment of a deputy. An order for the revocation of the appointment of BB as attorney for SB. A direction for RB to account within 14 days of the issue of the order in relation to all his dealings and transactions with SB’s estate. If he fails to account, an order revoking and cancelling the LPA and consideration given directing a panel deputy to be appointed.”