YW, Re [2016] EWCOP 18

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 12773532

[2016] EWCOP 18

COURT OF PROTECTION

Date 24 March 2016

MENTAL CAPACITY ACT 2005

IN THE MATTER OF YW

First Avenue House

42-49 High Holborn

London WC1V 6NP

Before

SENIOR JUDGE LUSH

Between

THE PUBLIC GUARDIANApplicant

TW, KW, HF, and SCRespondents

Ian Brownhill for applicant

Edward Lamb for first respondent

The second and fourth respondents in person for in person

Hearing Hearing date: 15 March 2016

JUDGMENT

Senior 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 Yvonne, who was born on 12 December 1935.

[3]She lives in Cornwall and used to be a primary school teacher.

[4]She owns a care home, which her husband set up in 1984. He died in 1995.

[5]She has three sons and a daughter, namely:(a) Thomas, who was born in 1962 and lives in France. He is a musician.

(b) Sian, who was born in 1963 and lives in Queensland, Australia. She is a landscape architect.

(d) Kevin, who was born in 1968 and lives in Devon. He is a chef.

[6]In 2013 Yvonne executed an LPA for property and financial affairs and an LPA for health and welfare, in which she appointed Thomas and Dominic to be her attorneys. These LPAs were registered by the Public Guardian on 9 July 2013, but Yvonne subsequently revoked them by a deed of revocation dated 31 October 2013.

[7]On 5 June 2014 she executed another LPA for property and financial affairs, in which she appointed Thomas and Kevin and Helen French, a solicitor, jointly and severally to be the attorneys. Her GP was the certificate provider.

[8]She gave the following guidance to the attorneys in the LPA:

“I do not wish to go into a nursing home. If health and finances permit, my preference is care at home. Any decision with respect to the sale of either of my properties should be made with the agreement of at least two of my attorneys.”

[9]The LPA also contained a professional charging clause enabling Helen French to charge for her services in accordance with a terms-of-business letter dated 5 June 2014.

[10]An application was made to the Office of the Public Guardian (‘OPG’) to register the LPA and it was registered three months later on 5 September 2014.

Yvonne’s estate

[11]Yvonne’s estate is worth roughly £1,200,000.

[12]She owns two properties: the care home, which is worth about £800,000 and the cottage in which she lives, which is valued at £350,000.

[13]She has savings of just under £50,000.

[14]She receives a state pension of £648 a month and a teacher’s pension of £403 a month.

[15]The income from the care home is approximately £4,750 a month. Dominic managed the home on her behalf from 2010 until 2013, when Kevin ousted him and took over the management himself.

The application

[16]On 12 December 2015 the Public Guardian applied to the court for:(1) an order under section 22(4)(b) of the Mental Capacity Act 2005 revoking the LPA; and

(2) an order inviting Sian to make an application for appointment as deputy to manage Yvonne’s property and financial affairs.

[17]The application was accompanied by a witness statement made on 8 October 2015 by Stuart Price, an investigations officer with the OPG, who said that:(a) Concerns were raised on 24 April 2015 that the attorneys were not cooperating with one another.

(b) Longstanding difficulties between Thomas and Kevin have made it impossible for them to agree on anything and continual resentment between them has led to significant and unnecessary professional costs.

(d) A deputy’s declaration (COP4) was completed by Sian on 21 September 2015.

The General Visitor’s report

[18]A Court of Protection General Visitor, Christina Pope, visited Yvonne in Bodmin Hospital on 8 June 2015 and in her report dated 13 June 2015 gave the following responses to the standard questions printed on the visit form:(1) Does the donor have an impairment of/disturbance in the functioning of his/her mind or brain? “I was informed that Yvonne has vascular dementia.”

(2) Does the donor have the mental capacity to revoke or suspend the LPA? “I discussed with Yvonne if she knew what an LPA was and she told me that she did and that she had dealt with that. Yvonne was able to inform me that she had three people as LPA however she was not able to tell me who they were. She did try to describe them and knew it was two males and a female but she was unable to provide any details. When I asked Yvonne how she would change her LPA if she wanted to, she mentioned a phone and told me they would have to come and see her again but could not elaborate any more. Yvonne did appear to change the subject if she did not know the answer. I believe that Yvonne could have capacity to change her LPA however she would need a large amount of support and I do not feel that she would ever come up with this idea of her own accord.”

(3) Does the donor have the mental capacity to make a new LPA? “I do not believe from the meeting I had with her that she would be able to nominate someone else to manage her affairs. When I discussed this with her she did state that she wouldn’t want anyone else, but then went on to talk about an unrelated topic and was not able to mention anyone that she thought might be able to assist with this.”

(4) Does the donor have the mental capacity to instruct his/her attorney to provide an account? “I believe that Yvonne has the capacity to instruct the attorney to provide accounts. I believe that this would not be something that Yvonne would think to do or want to do as she seems to have very little interest in relation to her financial affairs. She said that she does not talk to anyone in relation to her finances. When I asked Yvonne if she would like to see her statements, she stated that she would have to think about that. I believe from talking to Yvonne that she is able to construct some good answers to questions from the knowledge that she has but she is unable to add the relevant details as I don’t believe that she knows the answer. When I asked Yvonne the same question again in relation to her statements, she was still unable to provide me with an answer.”

(5) Does the donor have the mental capacity to direct the attorney with respect to any particular decisions which may be in issue? “… I do think that she would be able to be involved in some element of decision making but I do not believe this would extend to her financial affairs.”

(6) Does the donor have the mental capacity to manage his/her own affairs? “I do not believe Yvonne would have the capacity to manage her own affairs, from talking to her I also do not believe that she wants to. When speaking to Yvonne, she was unable to tell me about any income she might receive; if she had any bank accounts and where they might be; and she did not know what bills she would have to pay. Yvonne was not able to tell me what would happen if she was unable to pay her bills. I do not believe that Yvonne thinks about the details of her financial affairs any longer.” Order

[19]On 3 November 2015 I made an

Objections

[20]On 30 November 2015 Thomas filed an acknowledgment of service, in which he objected to the application. He said:

“I do not believe the application made by the court to appoint my sister Sian as deputy for my mother’s property and business affairs to be in my mother’s best interests.”

[21]He also made a witness statement, in which he set out his reasons for objecting in greater detail.

[22]On 3 December 2015 Kevin filed an acknowledgment of service seeking a different order. He said:

“In discussions with my sister, Sian, I would like the court to consider a new power of attorney set-up with her and myself as attorneys. I wanted to come off the current one due to the fact that I found I could no longer work with Thomas and Helen French as there seemed to be no consideration of my mother’s needs and a lot of abuse from Thomas and no effective input from Helen French. My mother’s main business, the care home, is struggling due to lack of management. Sian and I would work well together as we both wanted her to stay in her own home while our brothers wanted her to go into a nursing home.”

[23]He also made a witness statement.

[24]On 4 December 2015 Helen French filed an acknowledgment of service, in which she, too, sought a different order and said:

“I understand the court seeks to revoke this LPA and instead appoint a deputy. I was not aware that one of the attorneys (Kevin) was willing to resign as attorney. If he did so, I also would willingly resign and the remaining attorney, Thomas, could deal with his mother’s affairs. The only issue would be complying with the guidance that two attorneys agree the sale of either property but this would be an issue with a sole deputy also. This hopefully would be a quicker, easier and cheaper resolution for the problems encountered with operating under the LPA as it currently stands. My concerns regarding appointing a deputy in Australia relate to the donor’s business interest in the care home, which the Care Quality Commission as the regulator have already expressed concerns over geographic location with respect to an attorney and their availability in France. They are likely to find Australia unpalatable. This is a serious risk to the business which is the donor’s main investment.”

[25]She also made a witness statement and suggested this alternative:

“For Thomas to remain as attorney for his mother under the terms of the LPA dated 5th June 2014 and for Helen French and Kevin to resign. … An order for costs and an order allowing the sale of property by a sole attorney.”

Order

[26]On 8 January 2016 I made an

[27]The following statements were received:(a) Stuart Price’s second witness statement dated 2 February;

(b) Helen French’s second statement dated 22 February;

(d) Sian’s position statement dated 3 March; and

(e) Stuart Price’s third witness statement dated 4 March 2016.

Helen French’s disclaimer

[28]On 1 February 2016 Helen French disclaimed her appointment as an attorney and 22 February 2016 she made a witness statement in which she referred to various matters that had caused her concern and concluded by saying:

“I consider, from having met the whole family and witnessing their interactions, that the best solution would be for Thomas to be appointed as sole attorney or deputy. He consistently demonstrates the need to consider his mother’s best interests in all his decision making. He does not act rashly. He is pragmatic in his approach to dealing with his mother’s business life.”

Stuart Price’s final witness statement

[29]On 4 March 2016 Stuart Price of the OPG made his third and final witness statement, in which he hinted that the Public Guardian had begun to have reservations about the proposed appointment of Sian as deputy. He said:

“In my witness statement dated 2 February 2016, I requested that the court give consideration to either appointing Sian as deputy or appointing an independent person, i.e. a panel deputy. Upon reading Sian’s second witness statement dated 16 February 2016, the Public Guardian notes that her appointment may not resolve the family disharmony or be in the best interests of the donor. [One of the exhibits] to the witness statement commences with some intemperate language between Thomas and herself. Further, whilst the Public Guardian sees in paragraph 9 of her second witness statement that Sian “would initially spend whatever time is required in the UK to sort out her (the donor’s) care, finances and her business arrangements”, the Care Quality Commission (CGC) have already expressed concerns over geographic location with respect to an attorney and their availability in France. The Public Guardian’s position is that, should the court decide that Sian is not suitable to be deputy, an independent person, i.e. a panel deputy, should be appointed. The Public Guardian would expect that the panel deputy would seek and instruct professional expertise to keep the care home running profitably and within regulations, as well as determining issues on ownership long term. However, this is a matter for the panel deputy to resolve. Furthermore, the Public Guardian would expect the panel deputy to use their professional expertise to instruct investment professionals to manage the donor’s investments. The Public Guardian is not aware of any involvement of the local social services.”

The hearing

[30]The hearing took place on Tuesday, 15 March 2016, and was attended by:(a) Ian Brownhill, counsel for the Public Guardian;

(b) Ed Lamb, counsel for the first respondent, Thomas;

(d) the fourth respondent, Sian, in person.

[31]When I asked why Yvonne’s other son, Dominic, had taken no part in these proceedings, Kevin said that Dominic had run the care home before he took over, and large sums of money were unaccounted for.

[32]There was consensus that the LPA should be revoked, and my decision has been narrowed down to a choice between appointing either Sian or a panel deputy as Yvonne’s deputy for property and affairs.

[33]I asked Sian a number of questions, to which her responses were as follows:(a) She studied landscape architecture at Heriot Watt University in Edinburgh and went to Australia in 1988.

(b) She is married with two children, aged 21 and 19.

(c) Thomas had stated – perhaps disingenuously - that Sian had not visited Yvonne for seventeen years from 1998 to 2015. However, Sian’s account, with which Kevin concurred, was that Yvonne used to visit Sian and her young family in Australia for about five or six weeks every two years, and that this was easier than Sian and her family coming over to England.

(d) Sian has a return ticket to Queensland in early April, but plans to come back to the UK as frequently as she can, probably twice a year, and more often, if need be.

(e) She didn’t think there would be a problem with the Care Quality Commission if she were appointed as her mother’s deputy. The care home now has a manger, who is the registered service provider.

(f) If she were appointed deputy, she would take legal advice on winding up and disposing of the care home.

(g) When asked what her mother’s views would be, Sian thought that her mother would be delighted if she were appointed.

Position Statement on behalf of the Public Guardian

[34]The Public Guardian instructed Ian Brownhill of No5 Chambers, who filed a position statement on 9 March. In respect of whom I should appoint as deputy, he said:(a) Despite the cost implication, the court may take the view that the appointment of a panel deputy is the simplest and safest means of taking this case forward and protecting Yvonne.

(b) With regard to Thomas, although he avers that he ought to maintain the LPA alone, he has alleged financial mismanagement by Kevin. He has also particularised mismanagement of the care home but it is not clear what steps he has taken to ameliorate that alleged mismanagement.

(c) Similarly, with regard to Kevin, he makes various allegations with regard to Thomas. Those allegations include misrepresenting the financial situation of the care home.

(d) Sian very clearly expresses the view that if one of her brothers was allowed complete control that they would not act in the donor’s best interests.

(e) The court will no doubt have concern with regard to the report surrounding the death of one of the home’s residents. Some of the issues raised go directly to the management of the home and therefore the suitability of those attorneys in place.

(f) Finally, there is the obvious geographical difficulty associated with Sian being located in Australia. This is a concern shared by the CQC with regard to the operation and management of the care home.

(g) This is not a case where a schedule of agreed responsibilities could realistically be considered. The attorneys have already had the benefit of the support of a professional attorney and that has not succeeded. In the circumstances the court may consider that the outcome is the same as that in Re EL

[2015] EWCOP 30

, and that is the appointment of a panel deputy.

(h) Helen French as a professional attorney seeks her costs. Whilst it is of course accepted that there is an entitlement for attorneys to claim their reasonable costs from the estate, it is questionable in this case which costs are reasonable and which are not. Indeed, Helen French has been candid that the LPA is unworkable. Her duty in the circumstances, as both a solicitor and an attorney, was to alert the OPG, not to incur further costs.

(i) At the present juncture the Public Guardian will say that this is simply a case where the family dynamic and the complexity of the donor’s estate means it is impossible to maintain the status quo. In the circumstances, the Public Guardian’s position is that he still seeks an order under section 22(4)(b) of the Mental Capacity Act 2005, to revoke and cancel the registration of the LPA for property and financial affairs made by Yvonne and upon that order, a further order is made appointing either Sian or a panel deputy.

Thomas’s position statement

[35]Thomas didn’t attend the hearing, but instructed Ed Lamb of 9 Gough Square, to appear on his behalf. On 12 March Mr Lamb filed a brief position statement, saying:(1) This note is to be read in conjunction with Thomas’s two statements dated 30 November 2015 and 24 February 2016.

(2) The sole impartial and objective party in this case, Helen French, is confident that Thomas has acted in his mother’s best interests. However Thomas now considers that, due to the difficulties experienced between himself and Kevin and Sian, it is no longer in his mother’s best interests that he puts himself forward as an attorney.

(3) Thomas does not wish to engage in further disputes arising out of the many claims and counter-claims already made in this matter. Thomas recalls the initial criticisms made of him and his brother Kevin by the Public Guardian on 8 October 2015.

(4) In his two most recent statements the Public Guardian’s view has changed little, save that he now leaves the decision of whether Sian should be appointed as a deputy to the court.

(5) In light of the foregoing, Thomas invites the court to consider an order that: (a) the LPAs in respect of Thomas and Kevin be revoked; (b) Sian be appointed as sole deputy for the donor; and (c) a restriction placed on Sian in her role as deputy to prevent her from appointing Kevin as an employee of the care home and/or for her to not permit and/or encourage Kevin to be associated with the running of the care home (section 16(5) MCA 2005).

(6) In the alternative, the care home be sold at the prevailing rate.

Decision

[36]This LPA is not functioning satisfactorily because the animosity between the two remaining attorneys, Thomas and Kevin, has created an impasse, which is having an adverse effect on the management of YW’s property and financial affairs.

[37]There is one thing, however, on which the attorneys do agree, and that is that the LPA needs to be revoked and a deputy needs to be appointed.

[38]Unfortunately, the revocation of the LPA is not quite as simple as the attorneys think. The only evidence we have of Yvonne’s capacity is in the Court of Protection General Visitor’s report, which was ambivalent on the question of her capacity to revoke the LPA.

[39]Section 22(4)(b) of the Mental Capacity Act 2005 provides that the court may only revoke an LPA if the donor lacks capacity to do so. I would like to see an assessment by a Court of Protection Special Visitor before I consider revoking the LPA and making a substantive deputyship appointment.

[40]Pending receipt of the Special Visitor’s report, I shall suspend the attorneys’ authority to act under the LPA pursuant to section 23(2)(a) of the Act, and appoint an interim deputy for property and affairs.

[41]I described the law relating to the appointment of a deputy in Re DGP

[2015] EWCOP 58

and have nothing further to add.

[42]I propose to appoint Sian, rather than a panel deputy, as the interim deputy for the following reasons:(a) A panel deputy should only be appointed as a last resort, where no other suitable person is willing and able to act as the deputy.

(b) Sian is willing and able to act and there has been no effective challenge to her competence and integrity.

(c) Although Sian lives in Australia, for the reasons I gave in Re DGP (where the person applying to be appointed as deputy lived in Maryland, USA) this problem is not insuperable.

(d) Sian will be acting gratuitously, whereas a panel deputy will charge for his or her services. In Re DT

[2015] EWCOP 10

, I calculated that, in a straightforward case, a panel deputy’s costs were likely to be £6,100 during the first year post-appointment and roughly two thirds of that amount in the second and subsequent years. This case is far from straightforward, and I would be surprised if the panel deputy’s costs were less than double the figure I quoted during the first year after the appointment.

(e) Sian will be obtaining legal advice in any event, but there are many mundane, everyday matters in the administration of Yvonne’s affairs that do not require specialist professional input. With a panel deputy, the meter keeps running even when not much is happening.

(f) Yvonne has already tried to involve a professional as a substitute decision-maker in the management of her property and affairs. She appointed her solicitor, Helen French, to be one of her three attorneys, but the appointment can hardly be described as a success. The professional attorney had a thankless task and tried to act as a mediator between her two co-attorneys and in the process ran up a considerable amount of costs before finally disclaiming her appointment.

[43]Although I have no reason to doubt Sian’s belief that Yvonne would be delighted if Sian were appointed as her deputy, in order to satisfy my obligations under section 4(6) of the Act, I would like the Court of Protection Special Visitor also to ascertain, so far as is reasonably ascertainable, Yvonne’s present wishes and feelings with regard to the proposed appointment of Sian as her deputy before making the appointment substantive.

[44]This has been a difficult case on which to adjudicate, partly because the views of the applicant and the first respondent have shifted like quicksand and, whilst I am satisfied that my decision may be the least restrictive alternative, I don’t think that the solution is ideal. However, in this respect, I am comforted by the words of Mr Justice Peter Jackson in Cases A & B (Court of Protection: Delay and Costs)

[2014] EWCOP 48

. At paragraph 14 he said that:

“Another common driver of delay and expense is the search for the ideal solution, leading to decent but imperfect outcomes being rejected. People with mental capacity do not expect perfect solutions in life, and the requirement in Section 1(5) of the Mental Capacity Act 2005 that “An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests” calls for a sensible decision, not the pursuit of perfection.”

order

(a) requiring the OPG to serve the papers on the respondents by 13 November;

(b) inviting the respondents to respond to the application by 4 December; and

(c) directing that the matter be referred again to a judge on or after 7 December 2015. Objections order: (a) requiring the Public Guardian to file and serve on the respondents a witness statement in response to their objections to the application by 5 February; (b) inviting the respondents to file and serve any further evidence or submissions on which they intend to rely at the hearing by 26 February; and (c) listing the matter for hearing on Tuesday 15 March 2016.