AMH, Re [2015] EWCOP 70

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 1230971T[2015] EWCOP 70
COURT OF PROTECTION
Date 30 October 2015
MENTAL CAPACITY ACT 2005
First Avenue House
42-49 High Holborn
London WC1V 6NP
Before
SENIOR JUDGE LUSH
Between
THE PUBLIC GUARDIANApplicantALHRespondentsKEHRespondent
Re AMH
Fatima Chandoo of the Office of the Public Guardian for applicantThe first respondent in person and unrepresented for in personThe second respondent neither appeared nor was representedHearing Hearing date: 15 October 2015
JUDGMENTSenior Judge Lush:
[1]This is an application by the Public Guardian to revoke a Lasting Power of Attorney (‘LPA’) for property and financial affairs.

The background

[2]These proceedings relate to AMH, who was born on 31 October 1936.[3]She and her husband, Maurice, lived in Greenwich until 1999, when they retired and bought a bungalow in Herne Bay, Kent. Their three children gradually followed them down to Herne Bay over the next four or five years. Maurice died in 2007.[4]AMH has Lewy Body dementia, chronic obstructive pulmonary disease and epilepsy, and lives in a nursing home in Westgate-on-Sea. Her care is funded by NHS Continuing Health Care.[5]She had a daughter and two sons, namely:(a) Audrey, who is 59 and lives in Herne Bay. She is a divorcée and has no children.(b) Kevin, who is 57, lives in Herne Bay, and was formerly a greengrocer. He is married to Ann and they have two daughters, Tanya and Sabrina. They also had a son, who was killed in a road traffic accident when he was 32.(c) Robbie, who died of a heart attack in 2005, aged 39. He had two children, Rocky, who was born in 1988, and Xatasha, who was born in 1993.[6]Rocky lived with AMH and her husband from 1990 until she was hospitalised in 2013. He is the apple of her eye.[7]On 18 March 2002 AMH and her husband made mirror-image wills in which they appointed Barclays Bank Trust Company Limited to be their executor and trustee and, after giving a number of specific bequests of jewellery to various members of the family, left their residuary estate to Rocky, failing whom, to his sister Xatasha.[8]On 26 July 2012 AMH transferred ownership of the bungalow in Herne Bay into her and Rocky’s joint names.[9]On 20 January 2013 she executed an LPA for health and welfare, in which she appointed her son, Kevin, his wife, Ann, and their daughters Tanya and Sabrina jointly and severally to be her attorneys.[10]On 23 January 2013 she executed an LPA for property and financial affairs, in which she appointed her daughter, Audrey, and her grandson, Rocky, jointly and severally to be her attorneys.[11]Applications were made to the Office of the Public Guardian (‘OPG’) to register the LPAs and:(a) the LPA for health and welfare was registered on 12 April 2013; and(b) the LPA for property and financial affairs was registered on 25 April 2013.[12]The OPG carried out an investigation in 2013, as a result of which Rocky was removed as an attorney under the LPA for property and financial affairs because he lacks the capacity to act as an attorney.[13]AMH’s estate consists of a half share of the bungalow in Herne Bay. The bungalow as a whole is worth between £120,000 and £130,000, but essentially this is the value of the site. In addition she has savings of about £3,000, though £1,365 of this sum has been earmarked to pay for urgent roof repairs.[14]Her income comes solely from Incapacity Benefit and the state Retirement Pension, and totals £655.20 a month. Her expenditure, which consists mainly of property insurance, utilities, small gifts, dog food and vet’s bills, amounts to £583.63 a month.

The application

[15]On 26 March 2015 the Public Guardian applied for the following[16]The application was accompanied by a witness statement made on 26 March 2015 by Sonya Hanson, an investigations officer with the OPG. In summary, she said that:(a) On 16 July 2014 the attorney, Audrey, raised concerns with the OPG about the conduct of the attorneys acting under her mother’s LPA for health and welfare; namely, her brother Kevin, his wife Ann, and their daughters Tanya and Sabrina.(b) Audrey claimed that the health and welfare attorneys had coerced Rocky into removing a briefcase of AMH’s documents from the bungalow, and that they were planning to have AMH’s dogs put down.(c) On 13 August 2014 Sonya Hanson wrote to all the attorneys requesting information about the decisions they had made under the LPAs.(d) Four days later Audrey wrote to the OPG saying that she wished to retract all the concerns she had raised, because it was purely a family matter.(e) On 22 September 2014 Audrey rang the OPG and asked it to end its investigation. She said that she wasn’t prepared to send in the documents that the OPG had requested.(f) The Public Guardian became increasingly suspicious about Audrey’s unwillingness to provide any financial information. In addition, the manager of the care home expressed concerns that Audrey was buying items for AMH, such as additional foodstuffs, which were not only unnecessary but also totally unsuitable and a complete waste of money.(g) A Court of Protection Visitor (Barbara Joyce) visited AMH on 19 September 2013 and concluded she lacks the capacity to suspend or revoke the LPA.(h) The manager of AMH’s previous care home told Barbara Joyce that “the family were a nightmare. Their behaviour was having a significant impact on the service and she was considering giving the donor notice and terminating her placement. They constantly row, will not accept the judgments of staff, and have got into physical confrontation with one another.”(i) There was an incident in which Tanya threw a mug of tea over Audrey and Rocky. Audrey then pushed Tanya, who pushed her back. Audrey fell to the ground and Tanya kicked her in the shins and on the back of her head. Audrey reported the incident to the police.

Order

[17]On 16 April 2015 I made an order requiring:(a) the OPG to serve the papers on Audrey by 1 May;(b) Audrey to provide a full set of accounts to the OPG by 29 May;(c) the OPG to advise the court by 15 June whether the accounts were satisfactory; and(d) the file to be referred to a judge on or after 18 June 2015.

The objections

[18]On 5 May 2015 Audrey filed an application notice asking for an extension of time in which to file the accounts, because she had recently injured her back.[19]She also filed an acknowledgment of service, in which she objected to the Public Guardian’s application. At first sight, her objection is a clarion call to the court to respect her mother’s rights, will and preferences, and it is worth quoting in full. She said:
“My mum trusted only myself and Rocky with the property and finance side of things in what she wanted done and to be. Her and dad’s life-long live-in grandson since 2 yrs old, now 27 yrs, who they were both legal guardians to, who is named in both their wills as benefactor of [the bungalow in Herne Bay] when they both die, as mum and dad considered Rocky their son and it was his home with them. Mum knew the person I was and believed and trusted in me. She made me promise, before she lost her mind, that I would protect, keep safe, keep well, look after, watch over, her beloved Rocky and her 4 shih-tzus (dogs) she called her babies and do the same as regards her property and finance. My mum said to me, “Audrey, you are the only one I can really trust that I know will do what I want, won’t let me down, and you’ll keep your word – I want you to promise.”
I said, “Yes, mum, I promise you that I’ll do all you ask.” I have all the time sought to keep to all I promised my mum. I have come up against negativity from all areas. All I know is I must keep to my promises mum set to me. I’m driven by those promises to mum. I won’t fail her. I miss her so much. We were never apart. My mum’s mum called me and mum “her and her shadow”. My mum called me her clone. We were alike in every way; identical. So much so people say, “as long as you live, if your mum dies, she will always be alive because you’re too much alike: looks, character, ways, morals, everything.” Dad also said I was too much like mum. I ask you to allow me to continue to be my mum’s LPA that she made me in order that I can and will continue to act as she requested of me in the way that she wanted, in her best interest. My mum would be so mad that her and dad’s life-long live-in grandson (Rocky) since age 2 yrs, now 27 yrs, who they were also legal guardians to, OPG took away his LPA in 2013 simply because he had literacy problems and is dyslexic. Mum made myself and Rocky LPA in that he would take care of all the labouring side and I would take care of all literacy etc. side of things because of this. My mum’s decision choice of LPA was changed because OPG deemed Rocky not suitable and OPG took Rocky’s LPA away, disrespecting mum’s choice, her decision what she wanted. My mum at time of making LPA believed what she wanted would be, that she was securing what she wanted, and nothing and no one could change it. The OPG and others believe what they think is best should be. This is wrong. It’s my mum’s choice. It’s all about what my mum chose – what she wanted and trusted the C.O.P. to enforce for her. My mum had a right to choose for that choice she made to stay, be honoured, be respected, no matter what. My mum wanted her family to control all aspects of her life – health, welfare, property, finance – not strangers, departments or courts. It’s why she made LPAs. My mum’s wishes must be respected. She had the right to choose and it be upheld. She shouldn’t be considered a mindless object for people and departments to overrule her choices and decisions simply because she can’t object herself now. This would be taking advantage of my mother and her previously expressed desires, wishes, choices.”[20]On 7 May 2015 Kevin filed an acknowledgment of service in which he also objected to the Public Guardian’s application and said that he wished to be joined as a party to the proceedings. He said that:
“My grounds for opposing the application is that I instead be appointed deputy of my mother’s finance and property instead of the panel to be appointed by the Public Guardian. I believe the current LPA should be revoked and I made deputy for finance and property. I currently have LPA for health and welfare and feel I am the best person to assist my mother with her finance and property.”

Sonya Hanson’s second witness statement

[21]On 8 June 2015 Sonya Hanson filed a further witness statement. She said that:(a) on 25 May 2015 Audrey had provided the OPG with two files of documents including a copy of AMH’s will; and(b) Audrey had also filed five other witness statements from various people.[22]Sonya Hanson’s witness statement concluded as follows:
“The evidence provided by Audrey shows that AMH receives a monthly income of £655.20. Audrey has confirmed that she spends £566.63 of this every month. The personal allowance record shows a further £170 had been provided to [the nursing home] over a 10 month period which equates to a further £17 per month, providing AMH with monthly outgoings of £583.63. This leaves a monthly residue of £71.57, which over a year should have provided AMH with savings of £858.84, and yet the bank statements do not reflect this. The breakdown of spending provided by Audrey and the information provided by [the manager of the nursing home] show that a further £253 per month is spent unnecessarily on items of food and clothing for AMH. Audrey also confirmed that she still spends £199.11 per month on utilities and garden and property maintenance at [the bungalow in Herne Bay]. The Public Guardian accepts that this property is jointly owned and therefore cannot be utilised to its full extent, i.e. rented. The Public Guardian also accepts that [the bungalow] needs to be maintained, but would argue that the amounts provided by Audrey are considerably high. The Public Guardian is concerned that Audrey is not utilising AMH’s assets in her best interests. For example, she is not saving AMH’s surplus income in the event of her Continuous Health Care funding ceasing. That being said, the evidence shows that Audrey’s actions are more a consequence of her ignorance and belief that her current spending is benefitting AMH rather than her own self dealing. It is the Public Guardian’s opinion that Audrey would benefit from guidance in her role and therefore requests the court to revoke the LPA and appoint Audrey as deputy to manage AMH’s property and financial affairs with support from the OPG.”

Order

[23]On 17 July 2015 I made a directions[24]The respondents didn’t file or serve any further witness statements.[25]On 14 September 2015 Sonya Hanson filed a third witness statement, which was very brief. She concluded it by stating:
“The Public Guardian’s position therefore has not changed. The Public Guardian asks the court to revoke the LPA appointing Audrey as AMH’s attorney and appoint Audrey as a deputy to manage AMH’s property and financial affairs with support from the OPG.”

The hearing

[26]The hearing took place on 15 October 2015 and lasted an hour and a half. It was attended by.(a) Fatima Chandoo of the OPG; and(b) Audrey, who was accompanied by her aunt Pamela (AMH’s sister).[27]Audrey said that she had placed her mother’s shih-tzus in a boarding kennels in Hampshire, which is run as a charity, to which she makes a regular donation from AMH’s funds. Sadly, three of the four dogs have died.[28]Audrey took exception to her behaviour being described by Sonya Hanson as ‘ignorance’, and I had to reassure her that, in the context in which the word had been used, it simply meant that she was unaware of her role and responsibilities as an attorney.[29]Audrey objected to the Public Guardian’s suggestion that the LPA be revoked and that she should be appointed as her mother’s deputy. She clearly resents any form of oversight, but was eventually persuaded by her aunt that the Public Guardian’s proposal was perfectly reasonable in the circumstances and that the OPG was, in fact, trying to work with her, rather than against her.[30]Audrey said that she intended to apply to the court for the revocation of her mother’s LPA for health and welfare.

The law relating to the revocation of an LPA

[31]The Public Guardian has applied to the court to make an order under section 22(4)(b) of the Mental Capacity Act 2005 (‘MCA’) revoking the LPA for property and financial affairs and directing him to cancel its registration.[32]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’.[33]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.”
[34]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.”
[35]The United Nations Convention on the Rights of Persons with Disabilities was adopted by the United Nations General Assembly in 2006 and came into force on 3 May 2008. The United Kingdom ratified the Convention on 7 August 2009.[36]In her judgment in P v Cheshire West and Chester Council [2014] UKSC 19, at paragraph 36, Baroness Hale described the status of the Convention in the following terms:
“The whole point about human rights is their universal character. The rights set out in the European Convention are to be guaranteed to ‘everyone’ (article 1). They are premised on the inherent dignity of all human beings whatever their frailty or flaws. The same philosophy underpins the United Nations Convention on the Rights of Persons with Disabilities (CRPD), ratified by the United Kingdom in 2009. Although not directly incorporated into our domestic law, the CRPD is recognised by the Strasbourg court as part of the international law context within which the guarantees of the European Convention are to be interpreted.”
[37]Article 12.4 of the CRPD provides that:
“States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.”

Decision

[38]Audrey has some strange ideas about the functions and duties of an attorney acting under an LPA. A good example is her suggestion that her former co-attorney, Rocky, “would take care of all the labouring side and I would take care of all literacy etc. side of things.”[39]At the hearing I asked Audrey a few basic questions about the principles of the Mental Capacity Act 2005, best interests decision-making, and the fiduciary duties of an attorney acting under an LPA for property and financial affairs. The replies to these questions required no more knowledge than the information that is already contained in Part C of the LPA, which Audrey signed on 23 January 2013. She didn’t have a clue, and I am inclined to agree with the Public Guardian that her actions are “more a consequence of her ignorance … rather than her own self-dealing.”[40]What concerns me, however, is that Audrey has no intention or desire to learn about the principles of the Mental Capacity Act, or best interests decision-making, or her fiduciary duties as an attorney. One of her personality traits is inflexibility, or rigidity in thought and behaviour. She is adamant that she knows what is best and nothing and nobody will persuade her otherwise.[41]Take the bungalow, for instance. Audrey says that AMH wants Rocky to inherit the bungalow, so that he will always have a roof over his head. In fact, AMH didn’t specifically devise the bungalow to Rocky. She left him her entire residuary estate, which naturally includes the bungalow or its net proceeds of sale. Rocky doesn’t live in the bungalow and has no wish to live there. He is perfectly happy staying with friends. Yet, as a result of Audrey’s rigidity of thought, the bungalow has become a millstone around their necks. It is unoccupied and generating no income. It is a drain on AMH’s resources. AMH is paying the entire outgoings, even though she is beneficially entitled to only a half share of the net proceeds of sale. Rocky is unable to contribute towards its upkeep because he is in receipt of means-tested benefits. The bungalow should be sold or let or, at the very least, Audrey should be taking professional advice on how to achieve the best outcome for both AMH and Rocky and, in the event of a conflict of interests between them, the best result for AMH.[42]Another example is the purchase of additional foodstuffs. Audrey supplies her mother with things she liked to eat in the past, and often turns up with “24 mini sausage rolls, 6 pork pies, and numerous cakes and biscuits; too many for one person comfortably to eat.” AMH has no appetite for these items, partly because her tastes have changed, but mainly because she receives an adequate, nutritious and balanced diet at the nursing home. Yet, Audrey is spending over £250 a month of her mother’s money on unnecessary food, sweets and cakes, which AMH sometimes throws at members of staff and ultimately end up in the waste bin.[43]I said earlier, in paragraph 19, that the statement in Audrey’s acknowledgment of service was “a clarion call to the court to respect her mother’s rights, will and preferences.” On reflection, it is really a demand that the court should respect Audrey’s right to do as she pleases.[44]It would be neither sensible nor in AMH’s best interests to leave Audrey in unfettered control of her property and financial affairs. The Public Guardian has no statutory duty to supervise attorneys acting under an LPA, but he does have an obligation to supervise deputies appointed by the court by virtue of section 58(1)(c) of the Mental Capacity Act 2005.[45]I am satisfied that AMH lacks the capacity to revoke her LPA for property and financial affairs. I am also satisfied that, although Audrey may not have contravened her authority, she has behaved in a way that is not in AMH’s best interests. I shall, therefore, revoke the LPA, and appoint Audrey to act as AMH’s deputy for property and affairs.[46]This course of action enables the court to respect AMH’s rights, will and preferences as regards her choice of decision-maker, yet at the same time it allows the court to put in place appropriate, effective and proportionate safeguards to prevent Audrey from continuing to make unwise decisions that aren’t in AMH’s best interests.

order

1. The applicant seeks an order under section 23(3)(a) of the Mental Capacity Act 2005 directing the attorney Audrey to fully account for all her dealings with the financial affairs of AMH from 25 April 2013 to the present day, within 28 days. 2. If Audrey fails to comply, 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 made by AMH and registered on 25 April 2013. 3. If Audrey is removed as an attorney, an order directing that a panel deputy is invited to apply to be become AMH’s deputy to manage her property and financial affairs. order:(a) joining Kevin as a party to the proceedings as the second respondent, as he had requested;(b) requiring the respondents to file and serve witness statements by 28 August;(c) requiring the Public Guardian to file and serve any further witness statement by 25 September; and(d) listing the matter for an attended hearing on Thursday 15 October 2015.