AFR, Re [2015] EWCOP 73

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 12098600

[2015] EWCOP 73

COURT OF PROTECTION

Date 11 November 2015

MENTAL CAPACITY ACT 2005

First Avenue House

42-49 High Holborn

London WC1V 6NP

Before

SENIOR JUDGE LUSH

Re AFR

Between

THE PUBLIC GUARDIANApplicant

(1) AGRRespondents

(2) SYNRespondent

Claire Van Overdijk, instructed by the Office of the Public Guardian for Applicant

The first and second respondents neither attended nor were represented

Hearing Hearing date: 10 November 2015

JUDGMENT

Senior Judge Lush:

[1]This is an application by the Public Guardian to discharge two joint and several deputies for property and affairs on the grounds that they have behaved in a way that has contravened their authority or is not in their father’s best interests.

The background

[2]The person to whom these proceedings relate is Alan, who was born on 14 November 1927.

[3]His wife died in 2009.

[4]He has two daughters:(a) Alison, who lives in Bedfordshire, but spends a lot of time in Crete. She is a part-time bookkeeper and exams invigilator and receives a local government pension. She suffers from multiple sclerosis.

(b) Sarah, who also lives in Bedfordshire, and is unemployed and partially sighted.

[5]Alan has vascular dementia, which was first diagnosed in July 2006, as a result of which he lacks the capacity to make decisions about his property and financial affairs.

[6]On 1 March 2012 Nigel Davies, an authorised officer of the court, made an order in which he:(a) appointed Alison and Sarah jointly and severally to be their father’s deputies for property and affairs;

(b) authorised them to sell or let Alan’s house in Luton;

(d) required them to obtain and maintain security in the sum of £90,000.

[7]Alan was admitted to the Luton and Dunstable Hospital in June 2012 following a fall, in which he injured his head on a glass door, and has resided in his present care home since 27 December 2012.

Financial summary

[8]Alan’s property in Luton was sold on 3 December 2012 for £152,000, and there was an equity release charge on it for £23,000 which had to be repaid.

[9]His annual income during the accounting year 2014/15 was £9,980.36 and came entirely from his state retirement pension.

[10]His expenditure on care fees during the same period was £42,319.58.

The application

[11]On 21 May 2015 the Public Guardian submitted an application to the Court of Protection in which he sought the following orders: 1. An order under section 16(8)(a) of the Mental Capacity Act 2005 discharging the deputies, Sarah and Alison, and upon discharge an order directing that an appropriate partner of Machins Solicitors be approached and invited to make an application for his or her appointment as deputy to make decisions on behalf of Alan in relation to his property and financial affairs. 2. An order directing that Sarah and Alison shall account to the new deputy for all their dealings with Alan’s property and financial affairs from 1 March 2012 to the present date and provide copies of all documents, correspondence or records they hold or have access to, in respect of Alan’s property and financial affairs. 3. Security bond to remain in place pending further order of the court.

[12]The application was accompanied by a witness statement made on 21 May 2015 by Paul Tehan, an investigations officer with the OPG, who, to summarise, said that:(a) A deputy’s accounting period runs from the date on which the court order was made appointing them as deputy. In this case, the annual accounting period ran from 1 March to 28/29 February.

(b) The OPG had no concerns about the deputies’ annual report for 2012/2013. However, their report for 2013/2014 referred to loans that they had made to themselves.

(d) Sarah said that she had lent herself £10,604.07 and was in the process of paying it back. Two particularly large payments – £2,000 on 10 September and £3,712.80 on 28 November 2013 – were the legal fees for her divorce.

(e) On 26 January 2015 the OPG received copies of the statements relating to Alan’s Barclays Bank account. These revealed that Alison had paid herself £5,081 during the reporting period 2013/14, and that she had repaid £2,330.

(f) The bank statements also revealed that Sarah had obtained £4,400 in cash withdrawals from ATMs, and had made debit card payments of: (i) £895 to the Cross Keys pub; (ii) £125 to the Rose & Crown pub; and (iii) £4,083.36 to various stores such as Tesco, Matalan, Next, Pets at Home, Boots, Asda, the Co-Op, New Look, and so on.

(g) On 13 March 2015 the OPG received the report for the period from 1 March 2014 to 28 February 2015. The deputies said that they had repaid the loans, but no bank statements were submitted to verify this assertion.

(h) In the annual report for 2014/15 the deputies also stated that they had claimed gifts of £1,920 and expenses of £5,400 from Alan’s funds during that period. They said that these were “travelling expenses to and from care home approx 20 miles round trip by taxi two-three times weekly.”

(i) On 16 April 2015 the OPG phoned the manager of the care home in which Alan lives and enquired how often the deputies visit him. The manager said that their visits were infrequent, and that according to her records they had only visited him three times in the last twelve months.

(j) The Public Guardian sought an order directing that Nigel Gibson-Birch of Machins Solicitors LLP, Luton, be approached to act as deputy; that Alison and Sarah account to him, and that he should decide whether or not to call in the security bond.

[13]On 10 April 2015 Alison sent an email to the OPG, in which she said:

“In accordance to the COP we are allowed a present fund (i.e. Christmas, Birthdays etc) which is £960 per year and expenses for visiting, of which the COP said we are allowed to add in a meal afterwards, £2700 per year, so totalling these two amounts I could have had £3660 from the account. … The sum of £1920 is the gifting amount for both of us and the sum of £5400 is the total deputy expenses.”

Order

[14]On 17 June 2015 I made an order requiring:(a) the OPG to serve copies of the application papers on the deputies by 26 June;

(b) the deputies to respond by 17 July; and

Objection to the application

[15]Sarah made no response at all.

[16]On 8 July 2015 Alison signed an acknowledgment of service, in which she opposed the application. She said:

“I oppose the application for myself (not my sister) as any monies I have borrowed have been repaid and the accounting shows this. Since I have taken sole control of my father’s bank account (over the past year) there have been no discrepancies. In any loving family situation a parent would help his or her children out of money situations, hoping they would be repaid, which I have done. As for my sister, they would have helped her but not to the extent she has taken it to. Also in the statement supplied to us by Paul Tehan there are some items that my husband would like to address which are on enclosed form COP24.”

[17]In response to the question on the acknowledgment of service form, “Do you propose that a different order should be made?” Alison ticked the “Yes” box and said:

“I wish to be joint deputy with an accountant overseeing all my father’s financial accounts: Tim Kemp, AIMS Accountants, Steppingley, Bedford.”

[18]Alison’s acknowledgment of service was accompanied by a witness statement made on 8 July 2015 by her husband, Nathan, who said that:

“I am the husband of Alison, deputy to her father Alan. Over the past 3 years I have watched and helped where possible to keep in order the bookkeeping for his accounts. It has been a difficult time for all involved and a learning curve also. I would just like to state whether the people involved at the COP and OPG understand or not, but it is a very upsetting thing to have first your mother die and then to see your father disappear into himself and be someone who has no control over his mind or body. I have watched my wife go through phases of sadness, stress and depression, and with MS as well I have had to be a backbone of support. Unfortunately Alison’s sister has not helped in her borrowing of money from Alan’s account, and after much communication from both Alison and yourselves it seems that Sarah now wants nothing more to do with deputyship, which I agree wholeheartedly. If Alison is able to stay a deputy and be overseen by an accountant, things will work out a lot better, providing she is given a second chance. We all make mistakes. ... Also it seems the OPG make mistakes, please see below regarding the witness statement. The COP may not have made mistakes, but it obviously was not altogether clear to the sisters what was and was not accepted in self payments from the initial interview that was given, and I was present. So once again I would just like to add, please give Alison and our chosen accountant a chance to resume being deputies.”

[19]In the rest of his witness statement, Nathan drew attention to several factual errors in Paul Tehan’s witness statement, described the caseworker at the OPG who had handled this matter as being “inept at her job,” and concluded by saying:

“As we are opposing the removal of Alison (and only Alison) from the deputyship, I firmly disagree with the order to direct Mr Nigel Gibson-Birch as deputy, on the grounds of unnecessary removal of Alison, a conflicting witness statement from Paul Tehan from the truth, and the extortionate costs of a solicitor at £225 per hour from Alan’s account. We hope that Tim Kemp (Accountant) can oversee the banks and deputyship with Alison and myself. With only Alan’s best interests at heart as he now only has sufficient funds in his account for maybe another year or so of care fees.”

[20]On 13 July 2015 Nigel Gibson-Birch filed an application notice stating that “if the Court of Protection revokes the order appointing Alison and Sarah as deputies, I am seeking an order to be appointed Alan’s deputy.” He also filed a deputy’s declaration in which he said:

“My firm acted for Alison and Sarah in their application to be appointed deputies to administer the financial affairs of Alan. Neither I, nor my colleague nor this firm have acted for Alison and Sarah since the deputyship order was made and in February 2015 my firm was approached by the Office of the Public Guardian to enquire whether we might become the deputy for Alan in place of his daughters.”

[21]On 9 October 2015 I made an order listing this matter for an attended hearing on Tuesday 10 November 2015 and invited the parties to file and serve any further submissions by 5 November.

Christopher Rowe’s witness statement

[22]On 2 November 2015 Christopher Rowe of the OPG made a witness statement, which he concluded as follows:

“The Public Guardian’s view is that Alison may not have acted in Alan’s best interests and recommends that Alison should not remain as a deputy for the following reasons: (a) Alison loaned a total of £4,633.53 to herself from Alan’s estate without the authority of the court. (b) These funds have not been repaid in full as Alison believes she has an entitlement to £3,660 annually for gifts and expenses which she has offset against this debt. There is no evidence that an entitlement of £3,660 annually for this purpose has been authorised by the court. (c) Alison signed a COP4 declaration dated 11 January 2012 which included an undertaking that she will not use her position for her own personal benefit and should therefore have been aware of the law regarding her role and responsibilities. (d) Alison has provided spreadsheets and breakdowns of expenditure but has not complied with the Public Guardian’s requests for bank statements for 2014-2015. (e) The Public Guardian has concerns that £5,400 deputy expenses claimed for 2014-15 may not be in Alan’s best interests; and (f) Alison has not kept receipts in accordance with paragraph 3(a) of the court order dated 1 March 2012.” (a) Alison loaned a total of £4,633.53 to herself from Alan’s estate without the authority of the court. (b) These funds have not been repaid in full as Alison believes she has an entitlement to £3,660 annually for gifts and expenses which she has offset against this debt. There is no evidence that an entitlement of £3,660 annually for this purpose has been authorised by the court. (c) Alison signed a COP4 declaration dated 11 January 2012 which included an undertaking that she will not use her position for her own personal benefit and should therefore have been aware of the law regarding her role and responsibilities. (d) Alison has provided spreadsheets and breakdowns of expenditure but has not complied with the Public Guardian’s requests for bank statements for 2014-2015. (e) The Public Guardian has concerns that £5,400 deputy expenses claimed for 2014-15 may not be in Alan’s best interests; and (f) Alison has not kept receipts in accordance with paragraph 3(a) of the court order dated 1 March 2012.”

The hearing

[23]The hearing took place on Tuesday 10 November 2015 and was attended only by Miss Claire Van Overdijk of No. 5 Chambers, counsel for the Public Guardian.

[24]I had expected that Alison and her husband would attend, but they didn’t, and I asked the usher to ring the mobile phone number that Alison had given in her acknowledgment of service. Her husband, Nathan, answered the phone and said that they were out of the country; that they had been told in a letter from the court that they were not supposed to attend the hearing; and that Alan is very ill and only has a few days left.

[25]I didn’t believe that any member of the court staff would have written to the respondents telling them that they were not supposed to attend a hearing, so I checked the correspondence file. A standard, one-line letter had been sent to all parties on 21 October 2015 stating “Please find enclosed order made/amended by Senior

Judge Lush on 9th October 2015.” The order itself stated that:

“There shall be a disposal hearing before Senior Judge Lush in Court 24 at First Avenue House, 42-49 High Holborn, London WC1V 6NP at 11am on Tuesday 10 November 2015 with a time estimate of one and a half hours.”

[26]Miss Van Overdijk suggested that there may be a further breach of Alison’s duties as a deputy insofar as she seems to have delegated her functions to her husband.

The law relating to the removal of a deputy

[27]The Public Guardian’s application was for an order under section 16(8) of the Mental Capacity Act 2005, which provides that:

“The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on him if it is satisfied that the deputy - (a) has behaved, or is behaving in a way that contravenes the authority conferred on him by the court or is not in P’s best interests, or (b) proposes to behave in a way that would contravene that authority or would not be in P’s best interests.” (a) has behaved, or is behaving in a way that contravenes the authority conferred on him by the court or is not in P’s best interests, or (b) proposes to behave in a way that would contravene that authority or would not be in P’s best interests.”

[28]The Mental Capacity Act 2005 is supplemented by a Code of Practice, chapter 8 of which considers the role of court-appointed deputies. Paragraph 8.56 says that: “Deputies must carry out their duties carefully and responsibly. They have a duty to: ◦ act with due care and skill (duty of care) ◦ not to take advantage of their situation (fiduciary duty) ◦ indemnify the person against liability to third parties caused by the deputy’s negligence ◦ not delegate duties unless authorised to do so ◦ act in good faith ◦ respect the person’s confidentiality, and ◦ comply with the directions of the Court of Protection. Property and affairs deputies also have a duty to: ◦ keep accounts, and ◦ keep the person’s money and property separate from their own.

Property and affairs deputies also have a duty to:

[29]Paragraph 8.58 of the Code describes a deputy’s fiduciary duty as follows:

“A fiduciary duty means deputies must not take advantage of their position. Nor should they put themselves in a position where their personal interests conflict with their duties. … Deputies must not allow anything else to influence their duties. They cannot use their position for any personal benefit, whether or not it is at the person’s expense.”

Decision

[30]I am satisfied that Alan’s deputies have behaved in a way that has contravened the authority conferred on them by the court and has not been in his best interests.

[31]Sarah didn’t object to the Public Guardian’s application and, according to her brother-in-law, “wants nothing more to do with deputyship.”

[32]Alison, on the other hand, did oppose the application, and said in her acknowledgment of service that “since I have taken sole control of my father’s bank account (over the past year) there have been no discrepancies.”

[33]I disagree. There are considerable divergences between the truth and reality. These include the following:(a) Alison has clearly taken advantage of her position for her personal benefit.

(b) There is no evidence to corroborate her assertion that the loans have been repaid.

(c) She has failed to produce bank statements, despite requests to do so by the OPG, and is in breach of her duty under the court order “to keep statements, vouchers, receipts and other financial records.”

(d) I cannot accept the deputies’ combined expenses claim for £5,400 in the 2014/15 report for “travelling expenses to and from care home approx 20 miles round trip by taxi two-three times weekly,” when the care home manager states that, according to her records, the deputies have only visited their father three times in the last twelve months.

(e) The idea that “in accordance to the COP we are allowed a present fund which is £960 per year” is utter nonsense, as is Alison’s statement that “the COP said we are allowed to add in a meal” after visiting.

(f) I do not accept that Alison received a letter from the court telling her that she was not supposed to attend the hearing.

[34]Alison described herself as a part-time bookkeeper and one might reasonably have expected a higher standard of professionalism from her.

[35]Alison has shown that she cannot be trusted to manage Alan’s property and affairs, and to retain her as a deputy, even acting jointly with an accountant, would undermine the OPG’s role in supervising deputies appointed by the court.

[36]In my judgment, the revocation of Alison and Sarah’s appointment as deputies is a necessary and proportionate response for the protection of Alan’s right to have his financial affairs managed competently, honestly and in his best interests, and I shall discharge them as deputies and appoint Nigel Gibson-Birch of Machins Solicitors LLP as Alan’s deputy for property and affairs in their place.