“We are extremely disappointed to be making this application for retrospective permission for the£150 for each of us (Bill and Betty’s three children) for travel and expenses from their joint estate. Equally we are angry that the money we have saved from their estate for third party ‘top up’ fees has been paid back into their estate. In our view the OPG have forced us to act against the best interests of our parents. We now have no flexibility in choosing future care homes. Our parents wish to remain together in their own home for as long as possible, and all our decisions and actions have been to that end. The£450 we have taken for care and expenses is a fraction of the cost had we involved outside agencies. You will appreciate that in 2009 we had to plan for the future. Both our parents had been diagnosed with Alzheimer’s in 2008 and we had to make decisions quickly. We had no idea what the future might hold or what care decisions might have to be made, only that we needed money for them. We understand that our file has been passed to the judiciary. You will note that none of the above arrangements have been ‘hidden’, and we have tried to keep comprehensive records of all transactions and receipts in a perfectly open manner, and retaining all bank statements and receipts. Despite engaging care agencies in 2013 to oversee medication and meals, this has not reduced our own weekly tasks. Indeed, now that our parents are under greater observation, our ‘emergency’ calls have increased. The carers have informed us of various problems which necessitate extra journeys in order to solve them. We registered the EPA in October 2009 and in October 2010 we arranged for ourselves and my sister Susan to receive£150 per calendar month to offset travel and care expenses from the joint account of my mother and father. Prior to the above date and for the previous eight years, the three of us had undertaken all tasks relating to our parents’ care without recompense from their funds. However with the degeneration of their condition, care became more intensive, petrol prices increased considerably and, as my parents lost the capacity to drive, this was not economically sustainable.”
“We based our calculations on a mileage of 45p (this appears to be the AA choice), on an average two visits per week for my brother and myself and four to five visits for my sister, who is much closer. These visits are for basic care issues, gardening, house cleaning, taking meals etc. The round trip for myself is 26 miles and for my brother is 57 miles and for my sister 6 miles. In addition we incur extra petrol expenditure by taking our parents to: (1) Hospital, doctors, and dental appointments. (2) Visits to friends and relatives. I have taken my parents to Devon (Honiton), Bournemouth, London, Farnborough and Thame in Oxfordshire. My brother has done numerous trips to London as has my sister to London and Farnborough. These visits are becoming less frequent as our parents’ condition has worsened, particularly my father’s. (3) We all three incur double journeys when inviting our parents to meals at our houses: i.e. picking them up and returning them to their home. (4) My brother and myself have to liaise and consult over form filling, which is a round trip of approximately 50-55 miles. (5) We have ‘emergency spikes’. For example, last December our father had a slight stroke and was sent to hospital. We had an emergency visit in the morning and then again in the afternoon to take our mother to Winchester Hospital and then return to Basingstoke. This was in the middle of a huge storm. Our car hit a huge pool of water and we sustained damage that cost£120 , which we paid out of our own funds. Similarly, my brother, responding to an emergency call from our mother, had his parked car damaged by a reversing motorist while outside their bungalow in June 2013. Again no money was taken from our parents’ account. (6) We arranged to have a wet room installed as neither of my parents could manage to get into a bath, even for a shower. It took nine days to complete, and my mother stayed at my house, and we put father into respite, as he could not manage the stairs. In that time we had three return visits to Basingstoke and two return journeys to the care home each day to allow my mother to stay with my father throughout the day. My brother is currently at a financial disadvantage under the current system, living so far away. Would you be agreeable to a system which was based on mileage rather than the set amount we have at the moment? We made the current arrangement in order to comply with our parents’ wishes that “we are all treated the same”.”
“Decisions should always benefit the donor.”
“to make an application to the Court of Protection seeking retrospective approval for this expenditure, i.e.£150 per calendar month for each of the three children.”
“I refer to the financial statements for the years 2009/2010 to 2013/2014. I wish to draw attention to the distributions made each month in the sum of£150 to each of the attorneys and the third sibling Susan. The original complaint that the attorneys were helping themselves to the donor’s funds clearly came from Susan. Since the decision by the Office of the Public Guardian that sums of money in the amount of£42,000 be returned to the donors (I have verified that this took place on the9 December 2014 four days after the request from the Public Guardian) there has been further deterioration in the family relationships between the three siblings as a result of this instruction. I am informed that at least two major family disputes have occurred in front of the donors this year. This is most unsatisfactory in relation to the care and wellbeing of the elderly donors. It is likely there has been an irretrievable breakdown within the family regarding the care and well being of the donors. As a consequence I have advised the petitioners to seek the court’s direction to prevent the siblings visiting their parents at the same time until their differences have been amicably resolved. Both attorneys have informed me that Susan has repeatedly asked for financial help from the estate with a clear preference for cash payments throughout the period. If this is the case it may well partially explain the breakdown in normal relations between the brother and two sisters. In conclusion I do not consider that the two attorneys have profited from their duties in administrating the affairs of their parents. I am unable to determine if the same can be said of the third sibling Susan given that I have had no explanations in relation to her funding. Both attorneys devote considerable time and effort to the care and administration of the donors’ affairs. They have refunded£1,350 each to the estate following my letter dated22 August 2015 . They seek the court’s direction both in relation to these funds already expended on the donors’ behalf since December 2014 and going forward into the future.”
“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 also must not allow 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.”
“Your attorney(s) can recover the out-of-pocket expenses of acting as your attorney(s). If your attorney(s) are professional people, for example solicitors or accountants, they may be able to charge for their professional services as well. You may wish to provide expressly for remuneration of your attorney(s) (although if they are trustees they may not be allowed to accept it.”
“(2) The court may – (b) give directions with respect to – (iii) the remuneration or expenses of the attorney whether or not in default of or in accordance with any provision made by the instrument, including directions for the repayment of excessive or the payment of additional remuneration.” (b) give directions with respect to – (iii) the remuneration or expenses of the attorney whether or not in default of or in accordance with any provision made by the instrument, including directions for the repayment of excessive or the payment of additional remuneration.”
“We recommend that the court should have jurisdiction … to give direction as to the attorney’s remuneration and payment of his expenses as attorney. We propose that an EPA should be able to contain whatever terms as to remuneration and expenses the parties wished. Indeed we would regard it as desirable that the EPA should state whether or not the attorney was to be remunerated and, if so, on what basis. [There was a footnote, numbered 193, which is set out in the following paragraph]. Even if the EPA did not make specific provision, however, it is clear that problems could still arise. For example, the awarding of a fixed annual fee might prove unsatisfactory in the light of inflation or, indeed, if it assumed a large volume of work which never materialised. But even providing for ‘reasonable remuneration’ would leave open the question of what was reasonable in any given case. We therefore recommend that the court should be able to give directions generally as to the attorney’s remuneration and expenses (whether or not the EPA made specific provision) to cover such matters as the repayment by him of excessive remuneration and the payment to him of additional remuneration. Thus the attorney would have to apply to the court for directions if he wanted to claim remuneration in excess of that (if any) to which he was entitled under the power. This might happen as a result of a substantial and unforeseen increase in his duties. We would expect the court to be circumspect in considering such requests. One relevant factor would be the likelihood and relative desirability of the attorney disclaiming the power (in favour, perhaps, of [deputyship]) if his request was rejected.”
“We do not feel that the absence of such statements should automatically disentitle the attorney from a claim to remuneration or payment of expenses. It seems, for example, that an attorney under an ordinary power (containing no such statement) may be entitled to remuneration on an implied contract or on a quantum meruit basis. That is to say he may charge a reasonable fee for work done by him if there is an understanding that he would be remunerated; and an attorney (like a trustee) would always be entitled to reimbursement of costs and expenses reasonably incurred by him in the execution of his office.”
“In conclusion I do not consider that the two attorneys have profited from their duties in administrating the affairs of their parents.”
“The OPG have requested us to seek retrospective approval for£450 (per calendar month) taken for care and expenses from the joint account of Bill and Betty, i.e. each sibling receives£150 pcm (Theresa, Susan and Stephen). To grant the above approval and agree to the continuation of this arrangement (or some other form of calculation the court deems fit and proper). Without some form of financial support the level of care we provide to maintain our parents in their own home would be unsustainable. This is the most economical way of supporting our parents. If we had to rely on outside agencies to do the tasks we do out of love for our parents the cost to their estate would be far greater.” order: (1) travelling expenses; (2) remuneration for acting as attorneys; and (3) a ‘gratuitous’ care allowance.