SH, Re [2016] EWCOP 2

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 12744349

[2016] EWCOP 2

COURT OF PROTECTION

Date 8 January 2016

MENTAL CAPACITY ACT 2005

First Avenue House

42-49 High Holborn

London WC1V 6NP

Before

SENIOR JUDGE LUSH

Between

THE PUBLIC GUARDIANApplicant

RL, FJ, and KLCRespondents

Re SH

Rebecca Stickler, instructed by the Office of the Public Guardian for applicant

The respondents in person and unrepresented for in person

Hearing Hearing date: 10 December 2015

JUDGMENT

Senior Judge Lush:

[1]This is an application by the Public Guardian for the revocation of two Lasting Powers of Attorney; a Lasting Power of Attorney (‘LPA’) for property and affairs and an LPA for personal welfare.

The background

[2]Sybil is 93. She was born in Barbados on 30 May 1922 and came to live in England in 1960.

[3]She worked for several years at St Leonard’s Hospital, Hackney; then at Whipps Cross Hospital, and finally in Alliston House, a care home in Walthamstow run by the London Borough of Waltham Forest Council.

[4]She lives in a two-bedroom first-floor flat in Walthamstow, London E17 with her granddaughter, Fatima, who was born on 13 September 1977, and Fatima’s husband and three daughters, who are aged 16, 13 and 5.

[5]Sibyl married a man from Trinidad, from whom she had separated before she came to England. He died in 2000. She has three sons:(a) Karl, who was born on 30 November 1946 and lives in, Beckton, London E6;

(b) Rex, who was born on 18 March 1949, converted to Islam, and changed his name to Mohammed. He lives in Trinidad and is Fatima’s father; and

[6]On 15 April 2002 Sybil bought her flat from the Waltham Forest Community-Based Housing Association for £29,000. Her son Ray paid the entire purchase price and she executed a trust deed, in which she acknowledged that Ray was the beneficial owner of the property. In the same deed, Ray granted Sibyl the right to live in the flat for as long as she wishes, provided she pays all the outgoings.

[7]On 23 April 2008 Sybil executed an LPA for property affairs and an LPA for personal welfare, in which she appointed Ray to be her sole attorney.

[8]An application was made to the Office of the Public Guardian (‘OPG’) to register the LPAs. The LPA for property and affairs was registered on 23 September 2008 and the LPA for personal welfare was registered on 26 January 2009.

[9]On 17 July 2008 Sibyl made a will, in which she left her entire estate to Ray and appointed him to be her sole executor. If he predeceases her, then half of her estate will go to her son Mohammed and the other half will go to her grandchildren. The will was drawn up by J. H. Hart & Company, Solicitors, Upton Park, London E6.

[10]In August 2008 Sibyl was diagnosed as having dementia. She is now severely demented, non-communicative and doubly incontinent. She also has osteoarthritis, type 2 diabetes, Sjögren’s syndrome (which is an autoimmune disorder) and a history of recurrent urinary tract infections.

[11]There have been several complaints to the OPG about the attorney’s conduct. On each occasion the whistleblower has been Sybil’s eldest son, Karl.

The application

[12]On 9 July 2015 the Public Guardian applied to the court for the following

[13]The application was accompanied by a witness statement made on 8 July 2015 by David Richards, an investigations officer with the OPG. In summary:(a) Concerns were raised (again) on 23 November 2014.

(b) Ray only visits Sybil once a year and he has delegated his functions as attorney to his niece, Fatima.

(d) In November 2010 Sybil moved to Trinidad to live with her son Mohammed and his daughter Fatima. It was intended to be a permanent move and Ray was obliged to transfer to Fatima a lump sum of £15,000 from Sybil’s funds in order to satisfy the Trinidadian government that Sybil had adequate funds to support herself.

(e) In the event, Sybil returned to her flat in Walthamstow in 2012 and Fatima and her husband and their three daughters joined her.

(f) A Court of Protection General Visitor saw Sybil on 11 February 2015 and confirmed that she has severe dementia and lacks the capacity to revoke the LPAs.

Procedure

[14]On 11 September 2015 I made an order requiring:(a) the OPG to serve the papers on the attorney, Ray, by 25 September;

(b) Ray to respond to the application by 16 October;

(d) the matter to be referred back to me on or after 19 October 2015.

[15]On 13 October 2015 Marcus Power of Waltham Forest Council filed an acknowledgment of service, in which he said:

“The authorised officer of the London Borough of Waltham Forest was originally minded to take on the role of deputy for Sybil. However, in light of significant demand pressures, limited staffing resources within the section, and the complexity of the evidence submitted by the Public Guardian, the authorised officer has made the decision to withdraw the agreement to act.”

[16]Marcus Power suggested that the court should appoint a panel deputy, instead. The panel consists of approximately seventy professional deputies who have been appointed by the OPG. The court selects a deputy from the panel when no other suitable person is willing or able to act for someone who lacks mental capacity.

[17]On 13 October 2015 Karl filed an acknowledgment of service and a witness statement in which he said:

“I was the person who first wrote to the OPG with concerns over (a) the LPAs, (b) the ‘will’, (c) the ‘trust deed’ which my brother Ray holds regarding our mother’s affairs. My concerns are that the proper procedures were not observed in obtaining them. I am requesting my niece Fatima assumes control of our mother’s affairs.”

[18]On 16 October 2015 Fatima made a witness statement in which she said:

“I would like the LPA in favour of my uncle Ray to be revoked and I to replace him instead of the proposed Waltham Forest Council. I would like the court to review my uncle’s acquisition of the leasehold of [the property in Walthamstow] from my grandmother. I would like the court to review the will dated 17th July 2008 as I believe she lacked capacity to understand what she was signing.”

[19]On 27 October 2015 I made an

[20]On 17 November 2015 David Richards made a second witness statement, in which he said:(a) While no evidence has been filed by Ray, on 4 November 2015 he informed the OPG by telephone that he is content with being removed as attorney but would like whoever is appointed as deputy to pursue the issue of the money paid to Fatima, when the donor was living in Trinidad between 2010 and 2012.

(b) In Fatima’s witness statement, she states that she has looked after the donor since 2008 and feels that she is best placed to understand the donor’s needs and requirements. She wishes to be appointed as deputy, although her statement is unclear whether she is seeking to be appointed as health and welfare deputy as well as property and finance deputy.

(c) Fatima requests the court to review Ray’s acquisition of the donor’s property [in Walthamstow] and the donor’s capacity to have made a valid will in July 2008, as she believes the donor was diagnosed with severe dementia one month after the will was made.

(d) In Karl’s statement, he shares the same concerns as Fatima, that the will and the trust deed regarding the property are not valid. He provides emails he sent to the OPG. Amongst other things he claims that the donor’s signatures on the LPAs are false and that it is likely that she already had dementia when she made the LPAs.

(e) The appointment of an independent deputy would be preferable, if the court requires the deputy to further investigate Ray’s concerns regarding the lack of an explanation by Fatima about how the £15,000 paid to her in 2011 was dealt with. However, it does seem quite likely that these funds were spent on the donor while she lived in Trinidad, and there seems to be limited prospects of a further investigation leading to any of these funds being recovered.

(f) While an independent professional deputy would be able to consider the concerns about the will and the purchase of [the property], neither the court nor the deputy has the power to decide whether a will is valid. The deputy could apply to the court for the execution of a statutory will but this would be a costly process and might not be appropriate or necessary as the donor’s estate is very small.

(g) In addition, the purchase under the Right-to-Buy Scheme took place in 2002, which was several years before the donor was diagnosed with dementia. Furthermore, the donor was legally represented at the time and Ray provided all the funds required for the purchase. The court has no power to investigate the purchase or to set it aside and, while a deputy could investigate and bring proceedings in another court, they would be expected to seek legal advice on the prospects of success. Since there are insufficient funds to bear the costs of a panel deputy, unless they were willing to act on a pro bono basis, the prospect of a successful challenge to the purchase of the property seems remote.

(h) In the circumstances the OPG has no objection to Fatima being appointed as deputy to manage her property and financial affairs, as well as her health and welfare, if the court considers it necessary.

Rebecca Stickler’s position statement

[21]The Public Guardian’s legal team instructed Rebecca Stickler, a barrister at No5 Chambers, to represent him at the hearing, and on 9 December 2015 she filed a position statement, which she concluded as follows “The OPG maintains that the respondent, Ray, has not acted in Sybil’s best interests as attorney and the LPAs should be revoked. In particular, he:(a) has failed to monitor the money transferred to Trinidad or Sybil’s accounts and he has not received bank statements directly;

(b) did not register the LPA with the bank until recently;

(c) failed to demonstrate financial prudence in ensuring that all relevant benefits are obtained on Sybil’s behalf and her expenditure is reduced where possible;

(d) failed to provide the agreed payments for Fatima to care for Sybil; and

(e) delegated his health and welfare responsibilities to Fatima. London Borough of Waltham Forest has declined to act as deputy. There are also insufficient funds in Sybil’s estate for a panel deputy. Accordingly, the OPG has no objection to Fatima being appointed as deputy for property and affairs. The OPG also has no objection to Fatima being appointed as deputy for personal welfare should the court consider that such appointment is necessary. The court will of course be aware of the judgment of Baker J in G v E (by his litigation friend, the Official Solicitor), Manchester City Council, F

[2010] EWHC 512 (COP)

which considered the appointment of deputies for personal welfare (in particular paras. 55-64). On 4 November 2015, the attorney informed the OPG by telephone that he was happy to be removed as attorney but he would like whoever is appointed as deputy to pursue the issue of the money paid to Fatima when Sybil was living in Trinidad between 2010 and 2012. In his recent witness statement dated 7 December 2015, the attorney confirms that he is voluntarily giving up his role as attorney but does not consider the appointment of Fatima as deputy as being in Sybil’s best interests. As per their COP5 forms and witness statements, Fatima and Karl both seek orders that Fatima should be appointed as deputy (although it is not clear whether this is for property and affairs and/or personal welfare). In light of all matters stated above, the court is invited to make final declarations that Sybil lacks capacity to revoke the LPAs and make decisions about her property and financial affairs. Further the court is invited to revoke the LPAs and to appoint Fatima as Sybil’s deputy for property and affairs and as her deputy for personal welfare should the court consider this is necessary.” (a) has failed to monitor the money transferred to Trinidad or Sybil’s accounts and he has not received bank statements directly; (b) did not register the LPA with the bank until recently; (c) failed to demonstrate financial prudence in ensuring that all relevant benefits are obtained on Sybil’s behalf and her expenditure is reduced where possible; (d) failed to provide the agreed payments for Fatima to care for Sybil; and (e) delegated his health and welfare responsibilities to Fatima.

The law relating to the revocation of an LPA

[22]Section 22 of the Mental Capacity Act 2005 explains 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’.

[23]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.”

[24]Subsection (4) provides that:

“The court may – (a) … (b) if P lacks capacity to do so, revoke the instrument or the lasting power of attorney.” (a) … (b) if P lacks capacity to do so, revoke the instrument or the lasting power of attorney.”

The law relating to the appointment of a deputy for property and affairs

[25]I summarised the law relating to the appointment of a deputy for property and affairs recently in Re RP

[2016] EWCOP 1

, which was published on the BAILII website on 5 January 2016, and I confirm what I said at paragraphs 29 to 35 of that judgment.

[26]Suffice it to say that the Court of Protection has a discretion as to whom it appoints as a deputy and has traditionally preferred to appoint a relative or friend (as long as it is satisfied that it is in P’s best interests to do so), rather than a complete stranger, out of respect for their relationship. There are also more practical reasons for choosing a family member.

[27]A relative will usually be familiar with P’s affairs, and aware of their wishes and feelings. Someone with a close personal knowledge of P is also likely to be in a better position to meet the obligation of a deputy to consult with P, and to permit and encourage them to participate, or to improve their ability to participate, as fully as possible in any act or decision affecting them.

Decision regarding Sybil’s property and affairs

[28]I am satisfied that Sybil lacks the capacity to revoke her LPAs, and that her attorney, Ray, has behaved in a way that contravenes his authority or is not in her best interests.

[29]As Rebecca Stickler noted in her position statement, Ray:(a) failed to monitor the money transferred to Trinidad;

(b) failed to monitor Sybil’s accounts generally;

(d) didn’t even register the LPA for property and affairs with her bank until very recently;

(e) failed to demonstrate financial prudence in ensuring that all relevant benefits were obtained on Sybil’s behalf (for example, she has been paying Council Tax at a rate of £129 a month, in circumstances in which she may be entitled to an exemption); and

(f) failed to provide the agreed allowance for Fatima to care for Sybil.

[30]Because Sybil’s assets are of minimal value, it would not be in her best interests to appoint a professional deputy, who would expect to be remunerated for his or her services. Even Waltham Forest Council would have been entitled to charge an annual management fee not exceeding 3% of her assets.

[31]I propose to appoint Fatima to act as Sybil’s deputy for property and affairs. She has been looking after Sybil since 2008, and has sacrificed a lot for very little by way of reward.

[32]I agree with David Richards that there is no need for any further investigation into how she disposed of the £15,000 that was paid to her when she was looking after Sybil in Trinidad. I would have thought it was obvious that this sum was spent on care and general living expenses over a period of two years. There are certainly no reasonable grounds for believing that Fatima may have financially abused her grandmother.

[33]I am aware that there is friction in the family, but essentially this relates to the contents of Sybil’s will and Ray’s purchase of Sybil’s flat under the right-to-buy scheme. I have lost count of the number of cases I have dealt with, in which the purchase of social housing has rent a family asunder, but in this case the animosity between Karl and Fatima on the one hand, and Ray on the other hand, is unlikely to have any adverse impact on the management of Sybil’s financial affairs.

The law relating to the appointment of a deputy for personal welfare

[34]There is usually no need to appoint a deputy for personal welfare because of the provisions of section 5 of the Mental Capacity Act 2005, which were described by Professor Peter Bartlett, the author of Blackstone’s Guide to the Mental Capacity Act 2005, as “the least formalistic and most innovative of the legal devices in the Mental Capacity Act.”

[35]The gist of these provisions is that people who provide care for someone who lacks capacity are protected from liability for so doing, provided they act in the best interests of the person concerned and provided they don’t act negligently.

[36]In addition, section 16(4) of the Act provides that when deciding whether it is in a person’s best interests to appoint a deputy, “the court must have regard to the principles that:(a) a decision of the court is to be preferred to the appointment of a deputy, and

(b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.”

[37]Generally speaking, it is impracticable to apply section 16(4) in property and affairs cases, but in personal welfare cases, the court can and does apply section 16(4) quite rigidly.

[38]The Mental Capacity Act 2005 Code of Practice says, at paragraph 8.38, that:

“Deputies for personal welfare decisions will only be required in the most difficult cases where: (a) important and necessary actions cannot be carried out without the court’s authority, or (b) there is no other way of settling the matter in the best interests of the person who lacks capacity to make particular welfare decisions.”

[39]Paragraph 8.39 of the Code goes on to give the following examples of instances in which the appointment of a personal welfare deputy might be appropriate:(a) Someone needs to make a series of linked decisions over time and it would not be beneficial or appropriate to require all of those decisions to be made by the court. For example, someone (such as a family carer) who is close to a person with profound and multiple learning disabilities might apply to be appointed as a deputy with authority to make such decisions.

(b) The most appropriate way to act in the person’s best interests is to have a deputy, who will consult relevant people but have the final authority to make decisions.

(c) There is a history of family disputes that could have a detrimental effect on the person’s future care unless a deputy is appointed to make necessary decisions.

(d) The person who lacks capacity is felt to be at risk of serious harm if left in the care of family members. In these rare cases, welfare decisions may need to be made by someone independent of the family, such as a local authority officer. There may even be a need for an additional court order prohibiting those family members from having contact with the person.

[40]In G v E and Manchester City Council and F [2010] EHWC 2512 (COP) (Fam); [2010] COPLR Con Vol 470, Mr Justice Jonathan Baker considered in great detail whether it was necessary to appoint a personal welfare deputy, and said at paragraphs [56] and [57] that:

“[56]. The vast majority of decisions about incapacitated adults are taken by carers and others without any formal general authority. That was the position prior to the passing of the MCA under the principle of necessity: see Re F (Mental Patient: Sterilisation) [1990] 2 AC1, and in particular the speech of Lord Goff of Chieveley. In passing the MCA, Parliament ultimately rejected the Law Commission’s proposal of a statutory general authority and opted for the same approach as under the previous law by creating in section 5 a statutory defence to protect all persons who carry out acts in connection with the care or treatment of an incapacitated adult, provided they reasonably believe that it will be in that person’s best interests for the act to be done. Crucially, however, all persons who provide such care and treatment are expected to look to the Code. Certain categories of person are required by the statute, under section 42(4), to have regard to the Code (for example, anybody acting in relation to the incapacitated person in a professional capacity). In addition, however, as the Code itself makes clear, the Act applies more generally to everyone who looks after incapacitated persons, including family carers. Although not legally required to have regard to the Code, the Code itself stipulates that they should follow the guidance contained therein insofar as they are aware of it. [57]. The Act and Code are therefore constructed on the basis that the vast majority of decisions concerning incapacitated adults are taken informally and collaboratively by individuals or groups of people consulting and working together. It is emphatically not part of the scheme underpinning the Act that there should be one individual who as a matter of course is given a special legal status to make decisions about incapacitated persons. Experience has shown that working together is the best policy to ensure that incapacitated adults such as E receive the highest quality of care. This case is an example of what can go wrong when people do not work together.”

[41]And at paragraph [61] Mr

Justice Baker went on to comment that:

“It is axiomatic that the family is the cornerstone of our society and a person who lacks capacity should wherever possible be cared for by members of his natural family, provided that such a course is in his best interests and assuming that they are able and willing to take on what is often an enormous and challenging task. That does not, however, justify the appointment of family members as deputies simply because they are able and willing to serve in that capacity. The words of section 16(4) are clear. They do not permit the court to appoint deputies simply because “it feels confident it can” but only when satisfied that the circumstances and the decisions which will fall to be taken will be more appropriately taken by a deputy or deputies rather than by a court, bearing in mind the principle that decisions by the courts are to be preferred to decisions by deputies. Even then, the appointment must be as limited in scope and duration as is reasonably practicable in the circumstances. It would be a misreading of the structure and policy of the statute, and a misunderstanding of the concept and role of deputies, to think it necessary to appoint family members to that position in order to enable them better to fulfil their role as carers for P.”

Decision regarding Sybil’s personal welfare

[42]I propose to revoke the LPA for personal welfare because Ray has been thoroughly neglectful. He hardly ever visits his mother - not even on the occasions when she has been admitted to hospital - and he has delegated his personal welfare decision-making functions to Fatima. Thereby he has behaved in a way that contravenes his authority and is not in Sybil’s best interests.

[43]I can see no obvious need for Fatima to be appointed as a personal welfare deputy. Routine decisions concerning Sybil’s day-to-day care can be made by Fatima as her carer. Decisions about her medical treatment should be made by the health care professionals, who will no doubt consult Fatima and Sybil’s three sons. If there is any disagreement, an application can be made to the Court of Protection. Accordingly, notwithstanding the revocation of the LPA for personal welfare, I do not propose to appoint a personal welfare deputy to replace the attorney.

order

“The applicant seeks an order under section 22(4)(b) of the Mental Capacity Act 2005 directing: (1) The revocation of the registered LPAs made by Sybil on 23 April 2008 and registered on 23 September 2008 and 26 January 2009. (2) Should the court decide to remove the attorney, the court is asked to consider appointing London Borough of Waltham Forest Council as deputy to manage the property and financial affairs of Sybil.” order: (a) reciting the fact that Waltham Forest Council was not prepared to act as Sybil’s deputy and that it had suggested that a panel deputy be appointed instead; (b) joining Fatima and Karl as parties to the proceedings as the second and third respondents respectively; (c) requiring an officer of the court to send the Public Guardian copies of the respondents’ acknowledgments of service and witness statements: (d) requiring the Public Guardian to respond by 20 November; (e) giving the respondents a final opportunity to file and serve any further evidence or submissions by 4 December; and (f) listing the matter for hearing on 10 December 2015. David Richards’ witness statement for the Public Guardian

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