AH, Re [2016] EWCOP 9

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.

[2016] EWCOP 9

Case No 12703528

COURT OF PROTECTION

Date 2 February 2016

MENTAL CAPACITY ACT 2005

First Avenue House

42-49 High Holborn

London WC1V 6NP

Before

SENIOR JUDGE LUSH

Re AH

Between

THE PUBLIC GUARDIANApplicant

CHRespondent

Emma Sutton, instructed by the Office of the Public Guardian for applicant

The respondent in person and unrepresented for in person

Hearing Hearing date: 26 January 2016

JUDGMENT

Senior Judge Lush:

[1]This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney (‘LPA’) for property and financial affairs.

The background

[2]Alma was born on 13 December 1920, and is now 95. She was one of four siblings and never married.

[3]After leaving school she worked in a mill in Middleton, Manchester. She served in the Women’s Auxiliary Air Force (WAAF) during the Second World War, and spent the remainder of her career in the Co-Op’s head office in Manchester, where she was an administrative assistant.

[4]She has dementia and since 16 March 2010 she has lived in a nursing home in the Oldham postcode area. Until then, she had lived in the family home in Middleton, which she inherited when her mother died.

[5]On 11 December 2010 Alma executed an LPA for property and financial affairs, in which she appointed her niece’s husband, Colin, to be her sole attorney and named her late brother’s widow (the attorney’s mother-in-law) as the only person to be notified when an application was made to register the LPA.

[6]Colin is a general builder and handyman. He is 54 and is married to Alma’s niece, Amanda, who is 50. They live in the New Forest.

[7]The person who certified that Alma had capacity to create the LPA owns a hotel in the New Forest. He said that “Alma has been a personal friend of mine over the past 25 years and has always popped in to see me on her visits to the New Forest.”

[8]Colin mentioned at the hearing how, before she became too frail to travel, Alma used to catch a coach from Manchester to visit her brother and sister-in-law and him and his once a year. The last time she attempted this excursion was in 2007.

[9]The LPA was registered by the Office of the Public Guardian (‘OPG’) on 13 April 2011.

[10]Alma requires full support with all aspects of her personal care and daily living needs. She is doubly incontinent. She is fed by care staff on a softened diet and thickened fluids. She has no understanding of her needs. Her cognitive impairment has progressively increased since her admission to the nursing home in 2010. She has an en-suite bedroom on the first floor of the dementia unit, where she has a profiling bed and a recliner chair, both of which are fitted with pressure relieving equipment. She is hoisted for all transfers.

The application

[11]On 11 June 2015 the Public Guardian applied for: 1. An order under section 22(4)(b) of the Mental Capacity Act 2005 for the revocation and cancellation of registered the LPA. 2. An order directing that a panel deputy be invited to make an application to be appointed as Alma’s deputy for property and financial affairs. 3. An order directing the panel deputy to investigate the previous management of Alma’s finances and to restore them to their correct level, if required.

[12]The application was accompanied by a witness statement dated 22 May 2015 and made by Laura Knight, who had investigated the case at the OPG. In summary, she said that:(a) Concerns were raised on 8 December 2014.

(b) Colin hadn’t been paying the care home fees and this had put Alma’s placement at risk.

(d) He told the OPG that Virgin Money would charge £20 for each statement requested.

(e) Colin is extremely evasive whenever financial information is requested.

(f) No bank statements have been produced.

(g) Another property in Middleton was bought in Alma’s name for £60,000 on 6 June 2011.

(h) It isn’t clear why this other property was purchased for her and why she appeared on the electoral register as living at Colin and Amanda’s address in the New Forest after her admission to the nursing home.

(i) On 19 May 2015 Laura Knight received an email from Hampshire Police informing her that Colin had been interviewed under caution the day before.

(j) A Court of Protection General Visitor saw Alma on 19 January 2015 and confirmed that she has dementia and lacks the capacity to revoke the LPA.

Order

[13]On 4 August 2015 I made a directions order requiring:(a) the OPG to serve the papers on Colin by 14 August;

(b) Colin to file and serve a response by 11 September; and

Objection

[14]On 8 September 2015 Colin objected to the application. He said:

“Many of these points are incorrect and I would like a hearing to out my side of the facts. I have kept in contact with Laura Knight from the OPG. I called her when I received the directions order on 25th August 2015 and have been in contact since to explain the late receipt of the order also explaining that many of the facts are incorrect and I would like a hearing. No house has been purchased for £60,000 and Alma is not on the electors roll at my address and I have kept in contact with the home. The home was run by Southern Cross which have gone out of business and some confusion may have come from this as all the old staff have left and now new staff taken over. Alma’s house is now going on the market with local agents for £99,950. I also have a meeting at the home on Friday 14th September with Rochdale Borough Council and social workers regarding funding going forward.”

Order

[15]On 27 November 2015 I made a further order setting out a timetable in which the parties could file and serve any further evidence or submissions and listed the matter for hearing on Thursday 26 January 2016.

Rochdale Borough Council’s application

[16]On 2 November 2015 Alma’s social worker, Claire Gibbs, made an application for Rochdale Borough Council to be joined as a party to the proceedings. She stated that:

“I am currently undertaking a section 42 [of the Care Act 2014] Safeguarding Adults Enquiry in relation to financial abuse against Alma and would like to be updated and informed of any decision made in relation to Alma’s finances and the consideration of revoking lasting power of attorney that is in process.”

[17]She also filed a witness statement.

Laura Knight’s second witness statement

[18]On 17 December 2015 Laura Knight made a second witness statement, in which she said as follows:(a) I received a call from Colin on 22 October 2015. He stated that the local authority are lying about him. The £60,000 property he is alleged to have purchased was inherited by Alma from her brother, and it should be inherited by his wife when Alma dies. Colin said he’s spoken to a solicitor who advised him he does not need to account to the Public Guardian because he has a joint account with Alma which predates her LPA. I advised Colin that he has to account to the Public Guardian when requested and that he needs to provide evidence to support what he is saying. He said he hadn’t had time to collect everything. He said he had spoken to the care home and they would write a letter to say he provides personal allowance. He said that Alma’s benefits and pension had been stopped.

(b) After considering Colin’s evidence dated 8 September 2015 and his phone call on 22 October 2015, the Public Guardian’s position remains that Colin has failed to comply with his duties as attorney to Alma. Colin has not provided a satisfactory explanation for the expenditure made from Alma’s account and has not provided bank statements from the time the LPA was registered. It remains unclear to the Public Guardian what the unaccounted £29,489.97 has been spent on and no evidence has been provided to support the claim that [the other property in Middleton] was inherited by Alma.

(c) On 10 September 2015 the Court of Protection received a deputy’s declaration from Hugh Adrian Scott Jones (Mr Hugh Jones), a panel deputy who has applied to be deputy for Alma.

(d) The Public Guardian seeks an order from the court under paragraph 22(4) of the Mental Capacity Act 2005, revoking and cancelling the registered LPA executed on 13 April 2011 by Alma.

(e) The Public Guardian would ask the court to consider the appointment of Mr Hugh Jones to manage Alma’s property and financial affairs as being in the best interests of Alma. The Public Guardian also seeks an order from the court for Mr Hugh Jones to investigate the previous management of Alma’s finances and to restore them to their correct level if required.

[19]Colin didn’t file any further evidence or submissions.

The Public Guardian’s position statement

[20]The Public Guardian instructed Emma Sutton of counsel to represent him at the hearing and on 22 January 2015 she drafted a position statement, in which she said:

“The main issues for the court to consider regarding Colin’s behaviour compared with his duties as Alma’s attorney are as follows: (a) Engagement and accounting. Colin failed to account to the Public Guardian for his actions since he became Alma’s attorney despite repeated requests and extensions. This is not acceptable and the Public Guardian cannot therefore obtain an accurate understanding of how substantial funds have been used by Alma by reason of Colin’s inaction. Colin lives a great distance from Alma (circa 260 miles), infrequently visits, and is difficult to contact by telephone. His assertion that he has “kept in contact with the home” is at odds with the home’s evidence to the Public Guardian. (b) Financial mismanagement. Firstly, Colin has not (to date) provided any explanation for the unaccounted £29,489.97 taken from Alma’s account between October 2010 and May 2014. This is a substantial amount of money having regard to Alma’s overall means. Secondly, Colin has not responded, effectively or at all, to the calculation of the local authority that as at 25 March 2015, Alma should have had £59,431.24 in her bank account, having regard to her income, interest and outgoings. Thirdly, it is unclear how Alma became the leasehold owner of [the other property in Middleton] on 6 June 2011 only two months after the LPA was registered with the Public Guardian on 13 April 2011. Fourthly, it is unclear why Alma was registered as living with Colin in 2011 after her admission to [the nursing home] fifteen months earlier. Colin’s assertion to Laura Knight on 22 August 2015 that [the other property in Middleton] was ‘inherited’ from Alma’s brother is unsubstantiated and, significantly, was not disclosed by Colin at the outset of the investigation in January 2015. Notably, Colin chose not to disclose the existence of any other property save for [Alma’s own house] and it has been suggested by the local authority that there is possibly a third property owned by Alma. Finally, Colin’s belated assertion to the local authority on 19 October 2015 that Alma’s funds were being utilised by him for (1) improvement works to [Alma’s own house] and (2) for the upkeep of [Alma’s own house] and [the other property in Middleton], including utility bills, is again not evidenced by him, despite repeated requests being made by the local authority and Public Guardian. By reason of (a) and (b) above, it is submitted that Colin has breached his duty to keep an account of the transactions carried out on Alma’s behalf contrary to paragraph 7.67 of the Code of Practice (‘the Code’), has breached his duty of good faith as he has not acted with honesty and integrity contrary to paragraph 7.63 of the Code, both in relation to his actions in general and, in particular, with regards to providing information as to what property Alma owns, and has behaved in a way that in not in her best interests in breach of section 4 of the Act. (c) Care home fees. Despite Colin being charged by Four Seasons Healthcare (who previously owned the nursing home) and thereafter by the local authority, no payments have been received from Colin despite invoices and follow up requests for payment sent to him. Colin has failed to provide the local authority with any financial details upon her placement at [the nursing home] and his actions have repeatedly placed Alma’s security in jeopardy and threats of eviction have been made. His recent action of placing Alma’s property on the market for £99.950 falls short of providing any for his inaction in the previous five years since 2010. (d) Personal allowance. Colin has not/does not make regular personal allowance payments towards Alma and her balance repeatedly falls to an unacceptable level. Her assessed need for podiatry (for example) has been delayed and there are insufficient funds for new clothing to be purchased and most of her clothes are worn or passed from former residents who have either left or died. The evidence of Claire Gibbs conforms that in the 2½ year period from 18 November 2012 to 18 May 2015, Colin only provided £290 to Alma for her personal allowance; and that was only after several phone calls and requests in writing were made by [the nursing home]. Colin’s suggestion that [the nursing home] will write a letter stating that he provides a personal allowance to Alma remains unsubstantiated and is at odds with the evidence they have provided the Public Guardian, and the evidence of the local authority. By reason of (c) and (d) above, it is submitted that Colin has breached his duty of care, skill and diligence to ensure that Alma’s fees (and thereafter) debts were paid on time, or at all, and failed to ensure that her personal allowance was maintained on a consistent basis contrary to paragraph 7.59 of the Code. It is further submitted that Colin has breached his duty of good faith as he has not acted with honesty and integrity contrary to paragraph 7.63 of the Code, and has behaved in a way that is not in Alma’s best interests in breach of section 4 of the Act. (e) Mixing of funds. Alma and Colin have a joint bank account with Virgin Money. The table within the bundle highlights fifteen ‘concerning’ outgoings which remain unexplained and which were clearly not purchase made on Alma’s behalf including debits to the Odeon cinema, the Wilton Arms Hotel, Toby Carvery and Costa Coffee. Upon his appointment as Alma’s attorney, by continuing to have a ‘mixed account’, Colin breached his duty to keep Alma’s money separate from his contrary to paragraph 7.68 of the Code and has behaved in a way that is not in Alma’s best interests in breach of section 4 of the Act. Attorneys must, in most circumstances, keep finances separate to avoid the possibility of mistakes or confusion and this is not a situation of a husband acting as his wife’s attorney (for example) which might render the presumption to be rebutted.”

Secondly, Colin has not responded, effectively or at all, to the calculation of the local authority that as at 25 March 2015, Alma should have had £59,431.24 in her bank account, having regard to her income, interest and outgoings. Thirdly, it is unclear how Alma became the leasehold owner of [the other property in Middleton] on 6 June 2011 only two months after the LPA was registered with the Public Guardian on 13 April 2011. Fourthly, it is unclear why Alma was registered as living with Colin in 2011 after her admission to [the nursing home] fifteen months earlier. Colin’s assertion to Laura Knight on 22 August 2015 that [the other property in Middleton] was ‘inherited’ from Alma’s brother is unsubstantiated and, significantly, was not disclosed by Colin at the outset of the investigation in January 2015. Notably, Colin chose not to disclose the existence of any other property save for [Alma’s own house] and it has been suggested by the local authority that there is possibly a third property owned by Alma. Finally, Colin’s belated assertion to the local authority on 19 October 2015 that Alma’s funds were being utilised by him for (1) improvement works to [Alma’s own house] and (2) for the upkeep of [Alma’s own house] and [the other property in Middleton], including utility bills, is again not evidenced by him, despite repeated requests being made by the local authority and Public Guardian. By reason of (a) and (b) above, it is submitted that Colin has breached his duty to keep an account of the transactions carried out on Alma’s behalf contrary to paragraph 7.67 of the Code of Practice (‘the Code’), has breached his duty of good faith as he has not acted with honesty and integrity contrary to paragraph 7.63 of the Code, both in relation to his actions in general and, in particular, with regards to providing information as to what property Alma owns, and has behaved in a way that in not in her best interests in breach of section 4 of the Act. The evidence of Claire Gibbs conforms that in the 2½ year period from 18 November 2012 to 18 May 2015, Colin only provided £290 to Alma for her personal allowance; and that was only after several phone calls and requests in writing were made by [the nursing home]. Colin’s suggestion that [the nursing home] will write a letter stating that he provides a personal allowance to Alma remains unsubstantiated and is at odds with the evidence they have provided the Public Guardian, and the evidence of the local authority. By reason of (c) and (d) above, it is submitted that Colin has breached his duty of care, skill and diligence to ensure that Alma’s fees (and thereafter) debts were paid on time, or at all, and failed to ensure that her personal allowance was maintained on a consistent basis contrary to paragraph 7.59 of the Code. It is further submitted that Colin has breached his duty of good faith as he has not acted with honesty and integrity contrary to paragraph 7.63 of the Code, and has behaved in a way that is not in Alma’s best interests in breach of section 4 of the Act.

The hearing

[21]The hearing took place on Tuesday 26 January 2016 and was attended by:(a) Emma Sutton of No 5 Chambers, counsel for the Public Guardian, and Michelle Weaver from the OPG; and

(b) Colin and his wife Amanda.

[22]Emma Sutton said that the latest estimate of the debt outstanding in respect of unpaid nursing home fees was just under £100,000.

[23]Colin remarked that the debt was no longer increasing because in November 2015 Alma had been awarded National Health Service Continuing Health Care, which means that in future all her care fees will be paid from public funds. He is looking into seeing whether the award can be backdated.

[24]Colin conceded that he hadn’t kept any accounts, as he should have done, and he acknowledged that this alone was sufficient reason for his appointment as attorney to be revoked.

The law relating to the revocation of an LPA

[25]An attorney under an LPA acquires a lot of power, but they also take on numerous duties and responsibilities, which are described in Chapter 7 of the Mental Capacity Act Code of Practice.

[26]Paragraph 7.51 of the Code says that:

“Once the attorney starts to act under an LPA, they must meet certain standards. If they don’t carry out the duties below, they could be removed from the role. In some circumstances they could face charges of fraud or negligence.”

[27]The Code describes these duties as follows:(a) Duty of care (paragraph 7.59)

(b) Fiduciary duty (paragraph 7.60)

(d) Duty of good faith (paragraph 7.63)

(e) Duty of confidentiality (paragraph 7.64)

(f) Duty to comply with the directions of the Court of Protection (paragraph 7.65)

(g) Duty to keep accounts (paragraph 7.67)

(h) Duty to keep the person’s money and property separate (paragraph 7.68).

[28]The Public Guardian’s application is for an order under section 22(4)(b) of the Mental Capacity Act 2005 (‘MCA’) revoking Alma’s LPA for property and affairs and directing the Public Guardian to cancel its registration.

[29]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’.

[30]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.”

[31]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.”

[32]Section 1(5) of the MCA states 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.”

Decision

[33]The Court of Protection General Visitor, who saw Alma on 19 January 2015, observed that she “has no verbal communication and her dementia is so advanced that she is unable to demonstrate any understanding of her needs or her environment.”

[34]I have no reason to doubt what the Visitor says and, on the balance of probabilities, I am satisfied that Alma lacks capacity to revoke the LPA.

[35]Colin’s management of her property and financial affairs has been a litany of failings.

[36]He failed to pay the nursing home fees and thereby put her placement in jeopardy.

[37]The nursing home had difficulty contacting him. He failed to reply to their letters and failed to return their calls.

[38]He failed to provide Alma with an adequate personal allowance. The stingy sum he did deign to pay her (£290 over 2½ years) amounted to less than £10 a month.

[39]Her clothes are old and worn and mostly hand-me-downs from former residents who have died or moved elsewhere.

[40]The Court of Protection Visitor concluded her report by saying that:

“Alma would benefit from a full wardrobe of new clothing. In addition, she is reported to have loved to dance when she was mobile. The nursing home has provided a CD player but Alma would benefit from having her own music player and a range of CDs.”

[41]Colin failed to provide her with even these modest luxuries that could have enhanced her quality of life.

[42]He failed to account to the OPG. In fact, he failed to keep any accounts at all.

[43]He failed to produce bank statements.

[44]He failed to explain how he had managed to spend £29,489 of her money.

[45]He failed to act with honesty and integrity.

[46]He failed to keep Alma’s money separate from his own.

[47]And he failed to treat her with any semblance of dignity, empathy or respect.

[48]Having regard to all the circumstances, therefore, I satisfied that Colin has behaved in a way that contravenes his authority and is not in Alma’s best interests, and I shall revoke the LPA without further ado.