DWA, Re [2015] EWCOP 72

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 12471231[2015] EWCOP 72
COURT OF PROTECTION
Date 9 November 2015
MENTAL CAPACITY ACT 2005
First Avenue House
42-49 High Holborn
London WC1V 6NP
Before
SENIOR JUDGE LUSH
Between
THE PUBLIC GUARDIANApplicant(1) MARespondents(2) PARespondent(3) AARespondent
Re DWA
Emma Sutton, instructed by the Office of the Public Guardian for ApplicantThe first and second respondents in person and unrepresented for in personThe third respondent neither present nor representedHearing Hearing date: 21 October 2015
JUDGMENTSenior Judge Lush:
[1]On 1 October 2014 I made an order on the papers revoking a Lasting Power of Attorney (‘LPA’) for property and financial affairs in respect of one of three attorneys because I was satisfied that the donor was incapable of revoking the appointment herself and that the attorney in question had behaved in a way that contravened her authority or was not in the donor’s best interests. This is an application by the attorney whose appointment was revoked for me to reconsider that decision pursuant to rule 89 of the Court of Protection Rules 2007.

The background

[2]These proceedings relate to Dorothy, who was born on 29 April 1929 and lives in Solihull. She had a variety of jobs, the last of which was to handle telephone enquiries for a major utilities group. Her husband, Norman, who died in 2002, was an engineer.[3]She has three children:(a) Martyn, who is 66, lives in Solihull and is a quality auditor in the automobile industry;(b) Paul, who is 62, lives in Solihull, and is the director of a telecommunications company; and(c) Angela who is 57, lives in Birmingham, and is a cleaning supervisor.[4]On 2 March 2012 Dorothy executed an LPA for property and financial affairs and an LPA for health and welfare, in which she appointed all three of her children to be her attorneys. In the LPA for property and financial affairs she directed that they were to act jointly in relation to decisions about selling her house and jointly and severally for everything else.[5]Dorothy’s GP certified that she understood the purpose of the LPAs and the scope of the authority she was conferring on her attorneys.[6]An application was made on the same day to the Office of the Public Guardian (‘OPG’) to register the LPAs and they were registered on 25 May 2012.[7]Dorothy has mixed dementia, which was first assessed by a community psychiatric nurse on 10 December 2008. Apart from periods during which she was hospitalised, she lived in her own home until 7 November 2013, when she was admitted into residential care. Her fees are funded by NHS Continuing Health Care.

The application

[8]On 13 March 2014 the Public Guardian made an application to the court for:
“An order under section 22(4)(b) of the Mental Capacity Act 2005 for the partial revocation and cancellation of the registration of the Lasting Power of Attorney made by Dorothy, but allowing the LPA in respect of Paul and Martyn to continue in force and registration restricted to Paul and Martyn only.”
[9]The application was accompanied by a witness statement, dated 17 January 2014, made by Marie Gibbs, an investigations officer with the OPG, who said that:(a) On 11 July 2013 a whistle-blower had raised concerns regarding Angela.(b) It was alleged that Angela had made withdrawals of cash and incurred excessive expenditure on food using Dorothy’s debit card from 2 March 2012 until January 2013.(c) Angela had also set up a monthly standing order payable to herself for providing care for Dorothy.(d) All three attorneys cared for their mother on a rota basis, but Angela was the only one who charged.(e) Marie Gibbs wrote to Angela on 8 August 2013. She replied on 19 August 2013 but failed to provide any evidence of income or expenditure, receipts or bank statements because Martyn had taken over the management of Dorothy’s finances from 25 January 2013.(f) Angela said that between 25 May 2012 and 25 January 2013 she had made nine birthday gifts and fourteen Christmas gifts to members of her immediate family. In addition she had used her mother’s funds to give £200 to her daughter towards her wedding and £100 to her grandson for his first birthday, and had paid £99 for a Supertrike for the same little boy.(g) She said that, “Due to the fact that I am a single person on a low income I receive a portion of her attendance allowance - £40 per week as a payment to cover my petrol expenditure.”(h) Actually, Angela was taking £240 a month from her mother’s funds: £80 as a part repayment of a car loan and £160 a month in attendance allowance to cover her expenses.(i) Angela said that Dorothy had made a will on 25 July 1984, but had changed it on 15 November 2012. Angela was not consulted about this and understood that the new will was more advantageous to her brothers than to her.(j) The OPG wrote to Dorothy’s solicitors, Coley Tilley, and on 8 October 2013 one of the partners replied: “I have now been able to speak with Dorothy and I can confirm that I do not have authority to disclose her will to you or any other information concerning such matters.”(k) Between May 2012 and January 2013 there were 39 cash withdrawals totalling £3,921. Angela gave an incomplete account of these withdrawals, saying that some of them were gifts and the rest was the carer’s allowance of £240 a month that she had been paying herself.[10]Marie Gibbs concluded her witness statement by saying:
“Angela has made payments to herself from Dorothy’s estate without seeking the approval of the Court of Protection. She has not fully accounted for monies used from Dorothy’s estate. Therefore, it is submitted that the conduct of Angela demonstrates that she has not fulfilled her statutory duties as is required under the Mental Capacity Act 2005. She is in breach of her fiduciary duty not to self-deal. She is not complying with the guidance in the Mental Capacity Act Code of Practice that decisions made should be in the donor’s best interests. On the basis of the above, the Public Guardian is making an application to the court for the partial revocation of Dorothy’s property and financial affairs LPA, to remove Angela, leaving Martyn and Paul to act.”

Order

[11]On 25 March 2014 I made an order requiring:(a) the Public Guardian to serve the attorneys within seven days;(b) the attorneys to respond within twenty-eight days after being served; and(c) the matter to be referred again to a judge on or after 12 May 2014.

The objection

[12]On 22 April 2014 Paul completed an acknowledgment of service in which he consented to the Public Guardian’s application and sought orders:
“To have Angela removed as an attorney on the property and financial affairs LPA. To request that Angela removes her name from my mother’s bank account and request that Angela repays the money she has received from Dorothy’s bank account (£40 a week) for the period 7/11/2013 to date.”
[13]Martyn filed an almost identical acknowledgment of service, which is undated. He also sent a letter stating:
“My immediate family [myself, my wife, my son and my grandson] have not received any presents since 2011. Angela continued to buy presents for all of her immediate family without any discussion with Paul and myself. Angela states my mother paid £99 for a Supertrike. This is not the case as the boy’s father [name] paid for it. In finality I would like to ask the court to consider that Angela repay the £40 she is still taking from my mother’s account every week, even though she is not caring for my mother, as she has been in nursing homes since November 7th 2013, where she will continue to remain. All in all a total of six months, money she was not entitled to be taking.”
[14]On 23 April 2014 Angela filed an acknowledgment of service in which she objected to the Public Guardian’s application. She said:
“I oppose the application of the OPG investigation. It is not thorough in the following respects: (1) Medical evidence submitted to the OPG relating to Dorothy’s mental capacity has not been taken into account. (2) The report suggests that I had authority over Dorothy’s finances from commencement of the LPA dated 25th May 2012. This is untrue. She had mental capacity and undertook at times her own financial transactions or asked me on occasions to undertake them on her behalf. (3) See witness statement COP24 for further grounds. (4) No evidence to support the claims by OPG.”

Procedure

[15]On 23 May 2014 I ordered that copies of Angela’s objection be served on the Public Guardian and the co-attorneys and that the Public Guardian was to file a position statement as soon as reasonably practicable.[16]On 21 July 2014 Marie Gibbs filed a witness statement, which she concluded as follows:
“Having reviewed the information from Angela the Public Guardian has still not changed his position. On the basis of the above and the Public Guardian’s COP24 of 17 January 2014, the court is making an application for the partial revocation of Dorothy’s property and financial affairs LPA to remove Angela, leaving Martyn and Paul to act.”

The Special Visitor’s report

[17]0m 6 August 2014 Marie Gibbs commissioned a report from Dr Rajaratnam Thavasothy MB BS, DPM, MRCPsych, FRCPsych, one of the Court of Protection Special Visitors. Dr Thavasothy examined Dorothy on 25 August and wrote his report of the visit two days later. His conclusions were as follows:
“Having diagnosed her now as suffering from severe dementia, her current cognitive impairment is such that she does not have capacity and this leads me to the following responses to your questions. Capacity questions 1. The donor does not have the capacity to revoke or suspend the LPA. 2. The donor does not have the capacity to make a new LPA. 3. The donor does not have the capacity to direct the attorneys to make decisions on her behalf regarding the management of her affairs. 4. The donor does not have the capacity to manage her own affairs. 5. The donor does not have the capacity to instruct the attorneys to provide an account. 6. The donor does not have the capacity to choose or say who she would like to manage her affairs should she not be happy with her existing attorneys. Welfare and financial questions 1. The donor does not have any awareness of her financial situation. 2. The donor’s general well-being is very good. 3. The donor’s needs are being met at the care home and in my opinion this is the best place for her. 4. The donor would not be able to express any opinion as to whether she is happy with the attorneys’ management of her affairs and as to whether her wishes are carried out. 5. The donor is unable to express any wishes or feelings regarding where she resides. 6. The donor does not have the capacity to recall any gifts made from her estate, especially gifts to her daughter since May 2012. In particular, £80 per month towards part of a repayment of a car loan and £160 attendance allowance to cover her daughter’s expenses for caring for the donor before she moved to the care home. 7. No other issues. 8. She does not have the capacity to deal with the complaint.”
Capacity questions Welfare and financial questions

Order

[18]On 1 October 2014 I made the following order on the papers, without holding an attended hearing: IT IS DECLARED that: 1. The court is satisfied that the donor lacks the capacity to revoke the LPA and that Angela has behaved in a way that contravenes her authority or is not in the donor’s best interests. AND IT IS ORDERED that: 2. The court revokes the appointment of Angela as the donor’s attorney. 3. The Public Guardian is directed to cancel the registration of the LPA insofar as it relates to the appointment of Angela as an attorney as soon as is reasonably practicable. 4. The LPA shall remain in force with Martyn and Paul (‘the continuing attorneys’) acting jointly and severally as the donor’s attorneys in all matters except decisions about selling her house. 5. If the continuing attorneys need to make decisions about selling the donor’s house, they must apply to the court for an order. 6. This order was made without a hearing and without notice to any person who is affected by it. Pursuant to rule 89 of the Court of Protection Rules 2007, the donor, the attorney, or any other person affected by the order may apply within 21 days of the date on which the order was served, to have it set aside.[19]Paragraphs 4 and 5 of the order reflect the fact that Dorothy had appointed her attorneys to act jointly in relation to decisions about selling her house and jointly and severally in respect of all other decisions. Technically, the joint appointment ceased to exist as soon as Angela’s appointment as an attorney was revoked.[20]On 21 October 2014 Angela filed an application for reconsideration of my order of 1 October 2014 pursuant to rule 89 of the Court of Protection Rules 2007.[21]Subsequently, there was voluminous correspondence in the nature of an administrative complaint and, eventually, on 21 July 2015 I made an[22]Witness statements were filed by:(a) Martyn and Paul on 4 September;(b) Marie Gibbs on 5 September; and(c) Angela on 4 October 2015.

The hearing

[23]The hearing took place on Thursday, 21 October 2015 and was attended by:(a) Emma Sutton of No. 5 Chambers, counsel for the Public Guardian; and(b) Martyn and Paul and their wives.[24]Angela did not attend. I postponed the start of the hearing until 11.20, twenty minutes later than scheduled, in case Angela was having transport difficulties on her way to court. Miss Sutton left a message on her voicemail to which Angela replied at 11.55. She said she was in Birmingham and hadn’t realised that she was expected to attend the hearing.[25]Martyn explained the reason for assuming control over his mother’s finances in January 2013. He was concerned at the excessive expenditure on her account up to that time and he had managed to reduce it almost immediately by 50%.[26]Martyn and Paul confirmed that their mother’s house has not been sold, and they have no immediate plans to sell it.

The Public Guardian’s position statement

[27]Miss Sutton filed a position statement on behalf of the Public Guardian in which she said that:
“No new information has been provided by Angela which would cause the OPG to change its position regarding her unsuitability. In particular, in the eight month period from 25th May 2012 to 25th January 2013: (1) Angela repeatedly made payments to herself from Dorothy’s account on a monthly basis without seeking the approval of the Court of Protection - £40 per week as a carer’s allowance (petrol expenses) and repayment of a car loan. The £40 was set up by way of a standing order which Dorothy was not aware of. (2) Angela arranged for her name to be added to Dorothy’s bank account despite asserting that she had no involvement in the management of Dorothy’s financial affairs since January 2013, and again there is a discrepancy within her own evidence as to when this was done (January 2013 in one statement, April 2013 in another). (3) A significant amount of money was spent on ‘gifts’, which Angela has not sufficiently explained. (4) Angela has not accounted fully for her management of Dorothy’s finances and there are discrepancies within her own evidence. For example, the amount said to have been paid on a ‘Super Trike’ bicycle (£100 in one statement, £200 in another). By reason of the above, Angela has failed to fulfil her statutory duties pursuant to section 22(3)(b) of the MCA 2005 as she has behaved in a way that contravenes her authority and has not acted in Dorothy’s best interests. Furthermore, Angela has breached her fiduciary duty set out in paragraph 7.60 of the Code of Practice. She has taken advantage of her position in paying herself monies on a regular basis from Dorothy’s account and has allowed her personal interests to conflict with her duties and gained a personal benefit from her position as Dorothy’s attorney. Additionally, in breach of paragraph 7.67 of the Code of Practice, Angela has failed to keep accounts of all transactions carried out on Dorothy’s behalf and circa £650 remains outstanding. Finally, by adding her name to Dorothy’s account, she has breached the duty to keep Dorothy’s money and her money separate, as set out in paragraph 7.68 of the Code. In short, due to the care and attention Angela has provided to her mother she has allowed her duties to become blurred and her power of attorney regarding property and finances should be revoked. In the circumstances, and having regard to Dorothy’s best interests, and by application of the overriding objective to ensure that Dorothy’s interests and position are properly considered, the OPG invites the court to affirm the order of 1 October 2014 and, in so doing, dismiss Angela’s application.”
[28]Miss Sutton was keen to emphasise that Dorothy had made two LPAs; one for property and affairs and the other for health and welfare. The Public Guardian had no issues about Angela continuing to act as an attorney for health and welfare.

The duties of an attorney

[29]Part C of Dorothy’s LPA – the declaration by each attorney or replacement attorney, which Angela had signed on 19 March 2012 – stated that:
“In signing below, I confirm all of the following: Understanding of role and responsibilities I have read the section called ‘Information you must read’ on page 2 of this lasting power of attorney. I understand my role and responsibilities under this lasting power of attorney, in particular: • I have a duty to act on the principles of the Mental Capacity Act 2005 and have regard to the Mental Capacity Act Code of Practice • I can make decisions and act only when this lasting power of attorney has been registered • I must make decisions and act in the best interests of the person who is giving this lasting power of attorney • I can spend money to make gifts but only to charities or on customary occasions and for reasonable amounts • I have a duty to keep accounts and financial records and produce them to the Office of the Court of Protection and/or the Court of Protection on request.”
Understanding of role and responsibilities

I understand my role and responsibilities under this lasting power of attorney, in particular:

[30]Section 42(4) of the Mental Capacity Act 2005 (‘MCA’) provides that it is the duty of a person to have regard to the Mental Capacity Act Code of Practice (‘the Code’) if he or she is acting in relation to somebody who lacks capacity and is doing so as the donee of a lasting power of attorney.[31]The introduction to the Code says that ‘have regard to’ means that “they must be aware of the Code of Practice when acting or making decisions on behalf of someone who lacks capacity to make a decision for themselves, and they should be able to explain how they have had regard to the Code when acting or making decisions.”[32]Chapter 7 of the Code – What does the Act say about Lasting Powers of Attorney? - explains how people can plan ahead for the possibility that they might in future lack the capacity to make particular decisions for themselves by creating an LPA naming individuals who can make certain decisions on their behalf. It also describes how the attorneys appointed under an LPA should act.[33]The three paragraphs of the Code which were highlighted by Emma Sutton in her position statement on behalf of the Public Guardian began with paragraph 7.60, which says as follows:
“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.”
[34]Paragraph 7.67 of the Code 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 may need to be.”
[35]And the final example, 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

[36]The Public Guardian’s application was for an order under section 22(4)(b) of the MCA revoking and directing him to cancel the registration of the LPA.[37]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’.[38]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.”
[39]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.”
[40]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.”

Decision

[41]When I made the order on the papers on 1 October 2014 I was satisfied that:(a) Dorothy lacked the capacity to revoke Angela’s appointment herself, and(b) Angela had behaved in a way that contravened her authority or was not in Dorothy’s best interests.[42]As far as Dorothy’s capacity is concerned, I accepted, and still accept, the conclusions of the Court of Protection Special Visitor, Dr Thavasothy, who, in his report dated 27 August 2014, expressed the opinion that “the donor does not have the capacity to suspend or revoke the LPA.”[43]As regards Angela’s behaviour, I was satisfied, and am still satisfied, that she had:(a) breached her fiduciary duty as an attorney by taking advantage of her position and that she had obtained a personal benefit from her position. She also continued to receive a carer’s allowance after her mother was admitted into residential care on 7 November 2013.(b) failed to account satisfactorily for all the transactions she had carried out on Dorothy’s behalf as an attorney. In particular, there were several inconsistencies in her evidence as to amounts expended for which she had retained no receipts or other records; and(c) contravened the duty to keep her money separate from the donor’s. She had defiantly opened an account in her and Dorothy’s joint names soon after her brother Martyn assumed overall control of the management of Dorothy’s property and financial affairs in January 2013.[44]Nothing that Angela has subsequently said or done has persuaded me to change my mind. Accordingly, I confirm the order I made on 1 October 2014 revoking her appointment as an attorney under her mother’s LPA for property and financial affairs.

order

(a) requiring Angela to send the other parties by 7 August an updated witness statement setting out any further submissions upon which she wishes to rely;(b) requiring the other parties to file any response by 11 September;(c) inviting Angela to file any further witness statement by 9 October; and(d) for the matter to be considered at an attended hearing on Wednesday 21 October.