HH (attorney's application for retrospective approval), Re [2018] EWCOP 13

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 protected party and members of their [or his/her] 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.Neutral Citation Number: [2018] EWCOP 13Case No 12421862
IN THE COURT OF PROTECTION
Date 8 th May 2018
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF HH
Before: HHJ Vincent
Between
THApplicantJHRespondentOCCRespondentMH (as executor and trustee of the estate of EH, deceased)RespondentAT (as executor and trustee of the estate of EH, deceased)RespondentHHRespondent
Miss Bryony Robinson, instructed by Bircham Dyson Bell, solicitors for ApplicantMr Simon Hunter, instructed by BPE LLP, solicitors for First RespondentMiss Tracy Duce of Oxfordshire County Council for Second RespondentMiss Claire Fisk of Wansbroughs Solicitors for Third and Fourth Respondents
JUDGMENTIntroduction and parties’ positions
[1]HH is 95 and lives in a care home. He has two sons, TH, the Applicant, and JPH, the First Respondent. Their relationship is fraught, and appears to have been so for very many years.[2]HH was diagnosed with Alzheimer’s disease in August 2010. There is no issue that he lacks capacity for the purpose of these proceedings. For many years now he has needed assistance with all aspects of his care and daily living, and has needed two people to move him.[3]HH’s wife, EH, died on 22nd May 2013. Her estate is being administered by the Third and Fourth Respondents, MH and AT (“the trustees”). The trustees hold a charge over the Property of around £86,000 in respect of a discretionary nil-rate band trust established by EH’s will.[4]The Applicant is HH’s younger son. He holds an enduring power of attorney (EPA) for property and affairs for HH, entered into in July 2006 and registered in 2013. Initially the power of attorney was given to TH and EH’s niece, SM, but given the family disputes, she did not wish to act, and so TH became the sole attorney for his father. He also holds a lasting power of attorney (LPA) for health and welfare, which was registered in April 2016. The Applicant lives in Ireland with his wife and one of his two sons, the other having left home.[5]The application before the Court is made by TH at the request of the Office for the Public Guardian (“OPG”), for retrospective approval of gifts of money paid from HH’s accounts to or for the benefit of the Applicant from January 2011 and November 2017, in the total of £99,576.89 (now reduced to £88,366.77).[6]The Applicant’s application for retrospective approval is not opposed by OCC nor the trustees. It is opposed by his older brother the First Respondent, JPH.[7]The Applicant seeks approval of gifts made on behalf of HH to the Applicant, family members and carers during the same period in the total sum of £17,218.56. This application is not opposed by any party.[8]He seeks relief from any liability he may have incurred in making or receiving such gifts.[9]It is agreed that his father’s property should be sold.[10]It is further agreed that a professional deputy should be appointed to manage his father’s affairs from now on.[11]OCC was made a party to these proceedings on 1 December 2017. A sum of around £14,000 was owed to OCC in respect of historic care fees. This has now been paid. An application in respect of legal expenses incurred in preventing OCC obtaining a restriction on the property has now been withdrawn.[12]I am most grateful to counsel for the Applicant, Miss Robinson, and to counsel for the First Respondent, Mr Hunter, for their detailed written submissions. OCC was represented briefly on the first day of the hearing by Miss Duce who confirmed that the applications were not opposed. The issues between the Applicant and OCC having been resolved, it was agreed there was no need for her to remain in attendance throughout the rest of the hearing. Miss Fisk represents the trustees and has maintained a watching brief.

The law on retrospective approval of payments

[13]Under the EPA the Applicant has the power “to do on behalf of the donor anything which the donor could lawfully do by an attorney at the time when the donor executed the instrument” (para 3(1) Schedule 4 Mental Capacity Act 2005 (“MCA 2005”)).[14]This power is restricted in the following ways:(1) The attorney is only permitted to act so as to benefit persons other than the donor (including the attorney) insofar as the donor may be expected to provide for that person’s needs (para 3(2) Schedule 4 MCA 2005). This may include making payments to family members for care; however, where those payments represent a conflict of interest for the attorney, the attorney should apply to court for the approval of such payments (see In Re Buckley [2013] COPLR 35 at [43]).(2) In relation to gift-giving, an attorney under an EPA can only make gifts of a seasonal nature or on an anniversary, of a birth, a marriage or the formation of a civil partnership, to persons (including himself) who are related to or connected with the donor (para 3(3) Schedule 4 MCA 2005). The value of the gifts given by the attorney must not be unreasonable having regard to all the circumstances and in particular the size of the donor's estate.[15]Attorneys should be aware of the law regarding their role and responsibilities. Ignorance is no excuse. These are the words of Senior Judge Lush in Re Buckley, he went on to say that while he did not expect attorneys to be able to pass an exam on the provisions of the 2005 Act, they should at least have read the ‘information you must read’ section (in that case on the LPA rather than an EPA, but similar information exists), and the provisions of the Mental Capacity Act 2005 Code of Practice. Paragraph 7.60 of the code provides as follows:
‘A fiduciary duty means 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 any 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.’
[16]The court has the power to authorise payments made whilst P lacked capacity. In relation to registered EPAs it has the power to (Para 16(2) Schedule 16 MCA 2005): (e) authorise the attorney to act so as to benefit himself or other persons than the donor otherwise than in accordance with [the provisions providing for the attorney’s power to make gifts] but subject to any conditions or restrictions contained in the instrument); (f) relieve the attorney wholly or partly from any liability which he has or may have incurred on account of a breach of his duties as attorney.[17]Insofar as the EPA was not registered, but HH lacked capacity, the court has the power to approve these payments under s16 and s18(1)(b) MCA 2005. The court’s powers to approve payments retrospectively have been confirmed in a number of cases, including In Re GM [2013] W.T.L.R. 835.[18]The test for approval is the best interests test under s1(5) MCA 2005:
‘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.’
[19]The best interests test is an objective test. Section 4 MCA 2005 sets out a checklist of the factors that anyone doing the act or making the decision must consider when deciding what is in an incapacitated person’s best interests. The weight attached to the various factors will differ depending upon the individual circumstances of the particular case. Sometimes one factor will have ‘magnetic importance’ such that it tips the balance in a particular direction, sometimes there is no such magnetic factor.[20]‘Best interests’ is not synonymous with ‘self-interest’, Re G (TJ) [2010] EWHC 3005 (COP). MCA 2005 permits the Court of Protection to authorise gifts, settlements and wills which are not necessarily in P’s self-interest. I have been referred to and reminded myself of the case of Re JDS, 19 January 2012, in which Senior Judge Lush set out the approach that the Court of Protection should take when considering making orders concerning gifts, and how to decide whether an act done or decision made is one in P’s best interests.[21]The OPG has relatively recently published guidance on family care payments. These are payments made to family members where they provide some level of informal care for P. The OPG’s stated position is:
‘… payments to enable such care can be in the client’s best interests, provided the factors this guidance outlines are considered. When managed properly, it is often best for everyone if the client gets a combination of professional care and care from a family member, thereby enhancing the quality of family life while also providing respite for the family member.’
[22]The factors to take into account are set out in the OPG’s Guidance as follow:• The care must be reasonably required to meet the client’s needs and be of a good standard;• the payments must be affordable taking into account the client’s resources, age and life expectancy. If the payments cannot be met out of the client’s income, deputies must consider the effect on capital, having in mind the client’s future care needs;• Payments must properly reflect the input by the family/carer. There should be some evidence of how the care payment has been calculated in relation to the degree of care being provided;• The care must be actually provided. Temporary interruptions in provision of care, for example if the client is in hospital, do not mean the payments need to stop, but long term changes in the client’s living arrangements that affect the amount of care being provided must be considered—for example, a permanent move to a care home or supported living arrangement;• Deputies should consider payments alongside the level of professional care in place, i.e. they should be necessary to supplement professional care;• Payments should represent a saving on the cost of professional care. The guidance sets out some measures for calculating payment. One measure refers to the cost of commercial care less 20% where a significant amount of professional care is being provided and where P’s estate is sufficient (see Re HC [2015] EWCOP 29);• Payments should take into account any other contributions the client makes towards the running of the household or paying bills. Payments may need to be adjusted down if the carer is living in the client’s property rent-free or is getting other income;• Payments should take into account the overall family situation, for example, whether anyone is in gainful employment;• Payments should be agreed in consultation with the carer and other family members, where possible. It is good practice to consult others with an interest in the client’s affairs to avoid situations of conflict.[23]The court has wide powers under Sch 4, para 16(2)(f) MCA 205, to relieve an attorney of any liability that he has, or may have, incurred in the course of performing his duties as an attorney.[24]I have been referred to the case of Re Buckley, cited above, in which the attorney had used significant sums of money belonging to P for her own benefit and invested further sums into a reptile breeding business, again for her own benefit.[25]I was referred to the case of Re GM [2013] WTLR 835, in which the Court of Protection refused to ratify gifts of significant financial sums which the deputies for property and affairs had made from P’s funds to themselves and their relatives.[26]I was referred to Public Guardian v CC [2015] EWCOP 29, in which one of P’s children, appointed as her deputy for property and affairs, had paid himself a carer’s allowance. Senior Judge Lush was impressed by him as a witness, noted the enormous sacrifice made to give up a career as a quantity surveyor in order to become his mother’s full-time carer, and found the payments made to be not unreasonable. He found that they were affordable and less expensive than alternative care regimes. The judge applied a formula borrowed from personal injury law, in which commercial cost of care is reduced by 20% to reflect that it was given gratuitously by a relative or friend and is not taxed as commercial rates are.

The evidence

[27]I have read and considered the contents of two bundles, containing the application, witness statements served on behalf of all parties, and bank statements from two of HH’s accounts. I heard oral evidence from the Applicant and from the First Respondent.[28]The essential chronology is not in dispute.[29]In August 2010 HH was diagnosed with Alzheimer’s disease. At the time he was living with his wife EH and she was using two care agencies to help her look after him. After being hospitalised for a couple of weeks following an infection HH did not return home, but was cared for in care homes. EH’s health was deteriorating and she was being cared for by MS, who was later employed by TH to care for his father HH. TH says although his father wished to be at home it was felt there was not room in the property for both him and his wife and the carers required to meet both their needs.[30]TH says he was living back in England in the months prior to his mother’s death in May 2013. Thereafter he remained in order to arrange for his father to return home and to be cared for by MS. HH returned home on 10th July 2013. TH says he assisted MS in caring for his father, assisting her with double-handed lifting, providing respite for her, and learning himself how to care for his father. He returned to Ireland on 30th September 2013.[31]Around that time OCC assessed HH’s care needs at £804 per week, of which £500 was paid to MS and £200 was paid to PR, who had previously worked for many years as a cleaner for the family and was a trusted carer, and £104 contingencies. She assisted MS with HH’s care. HH’s contribution was set at around £475.[32]Between 30 September 2013 to 23 December 2014 TH says he came over to stay in England and assist with the care of his father for a number of trips, each around a week or two. He says that even when he was not in England, being involved in discussions around the arrangements for his father’s care took up considerable time and he was reliant upon payments from his father’s account to meet the cost of day-to-day living.[33]In September 2014 OCC reassessed HH’s contribution requiring him to pay the full £804 a week. An issue arose over a shortfall in HH’s contribution payments and OCC claimed a debt of £13,533 was owing. OCC also said that not all the financial information it required had been provided by TH at the initial assessment.[34]TH decided it was not affordable for his father to pay £804 a week towards his care needs. He decided to come and live in England and be his father’s live-in carer. MS left in January 2015, and TH gave her a gift of £500 on her departure.[35]PR continued to assist in providing care to HH, paid it seems £10 an hour for her services, earning around £400 to £600 a month. She is described in the notes as coming in every morning and evening Monday to Friday to assist with personal care and manual handling.[36]HH’s care needs increased over time, TH became exhausted and needed a break. In June 2017, HH was admitted to a district nursing home for an extended respite period. He returned to the care of his son and a live-in carer on 22nd August 2017, but it was evidently very challenging to meet his needs at home.[37]Since a further assessment on 31st August 2017, HH has been assessed as entitled to fully-funded care by the local authority and in October 2017, he moved into a care home.[38]The assessment in August 2017 identified HH’s needs as high and severe. As well as his dementia, HH also has blindness caused by glaucoma and macular degeneration, and dysphagia. He needs assistance with all aspects of his care; feeding, washing, shaving, and mobility. He is moved between a bed and a chair by hoist, requiring two people. He cannot communicate his needs, and can be resistant to receiving care and can be aggressive and shout at his carers. He is doubly incontinent. His breathing can be adversely affected by build-up of mucus in his throat and this needs to be removed by suction about once a week on average. He is severely disorientated in time and place, does not know if it is day or night, and suffers from distressing hallucinations.

HH’s finances

[39]HH is the sole owner of his house, valued at £550,000 but subject to a charge in favour of his wife’s trustees. He has an income of £45,822 a year.[40]At the time he prepared his first witness statement, TH said that his father had assets worth around £11,000, mostly shared with EH’s estate, but he had very little in his bank accounts. He said the income and household expenses were paid out of two bank accounts and although his father ‘used to have other accounts …. Since 2013 these have rarely been used and are virtually empty.’ TH sold a print from his father’s collection on 6th April 2017 for £2,500 and paid the money into his father’s account to reduce his overdraft. As at 16th May 2017 HH had two overdrafts totalling £1,813.77 and ‘some other debts, totalling £1,500’.[41]There is some evidence that HH holds or did have a number of shareholdings but I have not found any further information about that.[42]HH’s financial position has improved since he has moved into a care home, he has not been liable to fund his fees, and the Applicant has limited the spending from his accounts.

The Applicant

[43]I have read and considered three witness statements from the Applicant, and he gave oral evidence. He accepted that he knew nothing of the duties and responsibilities of being an attorney, nor the roles of the Court of Protection and the Office of the Public Guardian in overseeing that role. He said he was not good with money, that he had been extremely stressed and felt persecuted by the local authority then the OPG’s investigations and subsequent proceedings, reviving long-standing disputes with his brother. He says he has felt personally criticised and under attack, when all he says he has done is seek to do right by his father, at significant personal cost to him and his family. TH gave evidence that his time caring for his father has been extremely hard on the whole family; he has been separated from his wife and children, and finances have been tight, even with the benefit of monies from his father’s accounts. He has no wish to continue to act as his father’s attorney for property and affairs, and agrees that a professional deputy should now be appointed.[44]He accepted that he had prevented his brother from seeing their mother before her death, and that he had also prevented him from seeing their father. He showed the odd flash of anger towards his brother, but in general did not wish to be drawn on the evidently bitter and longstanding enmity between them.[45]The social work and medical professionals who have observed HH have all concluded that the standard of care provided to him when he was in his own home was excellent. There can be no doubt that TH has provided a high standard of care to his father and that providing this has been a considerable commitment on his part. He says frankly in his witness statements that he did not anticipate his father would live for as long as he has; he thought he would be coming over to England to care for him for a few weeks or possibly months, but it has turned out to be years. At various times he has been assisted by other paid carers, but for substantial periods of time he has been at his father’s side round the clock, seven days a week, with little or no respite. There can be no doubt that his efforts in providing care in the home have been of great benefit to his father, but at the cost of a limitation on all aspects of his own life. It is understandable that the responsibility of caring for his father for many years has caused stress and strain on him and members of his immediate family.[46]He did not appear to me to be seeking to hide any information from the Court nor to mislead; when particular transactions were put to him in cross-examination he readily accepted that they had been made for his own benefit or that of his family. There were a few payments which he said he could not identify, for example he suggested a payment to Cardtronics might be for printer ink, but it later became clear that cardtronics is a cash ATM service and was frequently used. He agreed he had purchased a laptop for himself and printer. He paid his son’s fees for his hall of residence, and a fishing trip with his son. He paid a speeding fine incurred by him using his father’s accounts. He paid for business cards and art supplies. He paid for dental treatment.[47]In some months the amounts allegedly spent on grocery bills, even including cleaning products and other household items regularly came in at around £1,000 a month. For a small household, it was put to him that this was manifestly excessive. He was nonplussed and said he didn’t think he’d ever totted up the amounts. When put to him that between January 2015 to June 2017 he was spending an average of £710 a month of his father’s money on such items he said he didn’t think it was particularly high. He said that he never modified his spending having regard to the balance of the accounts, although he tried to keep the accounts in credit. He was unaware that he had incurred significant charges – in excess of £2,000 - on his father’s accounts for being overdrawn. He said, ‘it’s fair to say someone else might have avoided this, but I didn’t do it deliberately or negligently, I just found it hard to do’. He accepted that he hadn’t realised these charges had been incurred and that he rarely read bank statements.[48]He accepted that over the relevant period of five and a half years between 2011 and 2017, £13,700 in cash had been withdrawn in Ireland and £16,000 of cash in England. He had no explanation for what this money had been spent on save to say the expenses of daily living.[49]TH was given general authority to act on his father’s behalf by the Enduring Power of Attorney (EPA) signed by his father and him in July 2006. In signing the document he confirmed that he understood his duty to apply to Court to register the EPA when the donor is or is becoming mentally incapable, but he accepted he had simply not got round to doing this until 2013. He signed declarations that he understood, ‘I am able to use the donor’s money to make gifts, but only on specified occasions and for reasonable amounts in relation to the donor’s money and property’, and that he had a duty ‘to keep proper accounts and records and produce them to the Court when requested.’[50]Notwithstanding this, he seemed to regard it almost as a badge of honour, or at least nothing that he should feel the slightest bit bad about, that he was not very interested in money, and was no good at managing it. He is a watercolourist by trade, and not concerned with such things. HH himself was a renowned artist and illustrator and TH gave the impression that he too seemed to think that worrying about money was rather petty and pedestrian. TH described his own attitude to his duties as ‘lackadaisical’, but he said he was concentrating on the situation on the ground. He accepted that his brother had written to give him some indication of his duties as an attorney, but he said that it came in emails that he regarded as containing, ‘such a blizzard of hostility and anxiety’, that he did not pay much attention, and these emails did not lead him to think any more clearly about his duties.[51]TH has had very significant financial assistance from his parents throughout his life and it would appear that he has continued to regard himself as entitled to that assistance as in line with their wishes since his mother died and his father lost capacity.[52]He accepted that he had in effect treated his father’s bank accounts as his own, to be used for the benefit of himself and the wider family. He suggested that this was on the authority of his mother, who would not have wanted him to be out of pocket as a result of his efforts in supporting her in coping with his father as dementia took hold, and following his mother’s death, taking on the responsibility of his father’s care arrangements. In particular, he said that his mother had given him to understand that he ‘should not go short’, and that she had effectively sanctioned the use of money to support him and his family in Ireland, that her money and HH’s money was regarded as effectively one, so he would use her card or his father’s to access funds as needed by him or his family, and did not pay much attention to which account he was using. TH’s evidence was that he had first had access to bank accounts belonging to his parents in around 2005 or 2006, on his mother’s authority.[53]He accepted that he had given a bank card to MS, his father’s carer, and to his own wife to use to access funds, and that he had not taken any record of what they had withdrawn or for what purpose. At first he said these were the only people he gave the card to, but later, when asked about cash withdrawals he said that other carers had access to bank cards. He accepted that there were days when money was withdrawn from the account to fund purchases or cash withdrawals in Ireland and money was also withdrawn in England on the same day.[54]From December 2014 regular payments were made to ‘transferwise’, he says as a salary to himself as carer. From late 2015 he paid himself £600 a week, but in general payments out of the accounts were made to meet his needs and those of his family as and when those needs arose. It was put to him that when making payments, particularly payments in Ireland, he considered his own needs and those of his family, rather than HH’s best interests and he said, ‘I can see why you would say that.’[55]In cross-examination he was taken to a number of items on the bank statements. He did not deny that very many of them were personal expenses, but his position remained that he regarded himself as entitled to them in recompense for the care he had provided, and this is what his father, and mother, would have wished. He said, ‘I don’t suppose anyone is suggesting I should have done all this for nothing.’ He has set out the payments in his witness statement and in a more detailed schedule. Between April 2013 and April 2017 TH says he withdrew money from his father’s accounts as follows: - Numerous payments towards the running expenses of his family’s home in Ireland, including heating bills, electricity, phone and grocery bills, the cost of keeping a car in Ireland. These items amount to about £9,000; - £43,614.58 transferred to his personal account on an ad hoc basis and to meet his and his family’s needs including the payment of rent on the family home in Ireland; - £7,155 cash withdrawals during the same period; - £4,057 for travel expenses to and from Ireland; - Loan repayments – TH says he took out a loan in his own name to pay for his father’s care and paid £5,500 of the monies into HH’s bank account. Since April 2016 he has used his father’s income to make repayments; - Around £8,000 in miscellaneous expenditure for his benefit and the benefit of his family, including for example payments for artists’ materials and printer ink for his own business as a self-employed artist, travel expenses for his wife to visit England, payment of university halls of residence bills and tuition fees for his son, and for the First Respondent’s son.[56]It was submitted on his behalf that if one took a step back and considered what the cost of commercial care would have been for this period of time, the amounts withdrawn by the First Applicant represent far less than might reasonably have been paid out. I accept that the OPG guidelines suggest the Court may take note that care provided is better value than commercial care, but I do not accept that on the face of it amounts paid out to an attorney up to a limit of a percentage of the cost of commercial care should be ratified without further consideration. The starting point is not to find a figure for commercial care after the event, and then award to the Applicant a percentage of that figure, but to scrutinise the payments made in all the circumstances and to determine whether or not it could be said that they were made, or the Applicant reasonably believed they were made, in the best interests of HH.[57]In any event, while there is some limited evidence before the Court of the cost of commercial carers, there are a lot of gaps. It is hard to see that TH conducted a very thorough exercise to establish what was needed, what the reasonable cost was and whether it was practicable to provide it. His witness statement was predicated on the basis that his father needed three carers to be employed in his care, but that seems only to be for the occasions when he was staying at the house as well as MS and PR. In fact for substantial periods they provided care without him and he provided care on his own with daily assistance from PR. I accept that the two carers would need respite, provided by a third, but there is no evidence that HH was assessed as needing three carers at any one time, or even two carers for most of the time. TH did not provide the financial information required to the local authority and so contributions were reassessed as needing to come wholly from his father.[58]Without evidence to enable me to establish realistically what the cost of commercial care would have been, I have no starting figure from which to take a percentage from, even if I were persuaded that this was the way to determine what level of payments should be ratified. JPH[59]I considered two witness statements from the First Respondent and heard evidence from him. He eloquently and vividly described particular individuals or events, but fairly accepted that I am concerned with the management of property affairs, and not some of the issues he would have perhaps liked to have formed part of the broader canvass. The strength of feeling towards his brother in respect of a number of matters was clear; the main source of his anger and distress is of being excluded from his parent’s home by his carer MS, or on the instructions of his brother - having accepted MS’s allegations against him as true without further enquiry. JPH considers his brother’s choice of carer for his father was a mistake and considers her hostility to him to be an aggravating feature of what was clearly already a very strained relationship between the two brothers.[60]He has accepted that he or members of his family have benefited from a number of payments from his father’s account. The schedule of gifts to family members which he has agreed includes the following payments totalling £15,196.05 for his own benefit: - £120 September 2011; - £6,250 in December 2011 for tuition fees for his son and rent for them both to live in Cirencester while his son was studying; - £4,150 in August 2012 for rent; - £1,500 in November 2012; - £650 in April 2013; - £773.60 in May 2013 (for accommodation near to HH and EH’s home); - £700 in May 2013; - £452.45 in June 2013 (for accommodation near to HH and EH’s home); - £300 cash in June 2013; - £300 cash in October 2013[61]That leaves on the schedule of gifts a total of £1,157.41 to the Applicant’s son, £302 to his wife and £563.10 in payment to HH’s carers.[62]JPH accepts that his brother should be paid for the care that he did actually provide. My impression from his evidence was that he was keen to ensure that his parents’ wish to equalise their legacies to him and his brother should be respected and implemented. Far greater than JPH’s concern about the finances, has been concern about what has happened to a number of his parents’ possessions, and his concern about welfare matters. He alleges that his brother has deprived him of free access to his mother in her dying days and more recently to his father when he was living at home. Happily, it has been agreed within these proceedings that JPH may visit his father in his care home and I understand such visits have taken place. MH[63]On behalf of the trustees, I have considered two statements, filed in June 2017 and January 2018 respectively. The statements are not challenged. In 2008 EH and HH set out in a letter of wishes that they wished to equalise the gifts they had given to their sons during their lives. The estate is not yet distributed because there are insufficient liquid funds to do so. The intention is that £6,000 shall be paid to PR, the solicitors will be paid for their work, and the remaining funds shall be divided equally between TH and JPH, once an account has been taken of the gifts they have each received from their mother during the seven years before her death. This exercise has been difficult to achieve because TH and JPH do not agree about these gifts and because TH was also his mother’s attorney before her death and used a ‘buddy card’ for her bank account. In his witness statement, MH says that TH received considerably more than his brother JPH. The main asset of the estate is EH’s half share in the property in which they lived, and which agreement has now been reached that it should be sold. The property is now in HH’s sole name, but the trustees have taken out a charge on the property so as to ensure that there are sufficient funds upon sale to enable them to discharge their obligations in distributing the estate. RB[64]I have had regard to a detailed and thorough analysis of the figures contained in the witness statement of Ms RB, who is a debt recovery officer for the local authority. She has clearly spent a lot of time going through the accounts. Given that OCC no longer sought to challenge the application, she was not called as a witness and so her statement was not tested by cross-examination, however, its contents have not been challenged by any party.[65]She notes that HH was in receipt of direct payments between 23rd August 2013 and 5th January 2015 but had to make a contribution to his care. TH was responsible for paying the invoices but in December 2013 he stopped paying them. Subsequently she says that because TH did not provide financial information (about the value of HH’s shares with BT, National Grid and another company, nor information about TH’s own travel expenses) following a meeting in September 2014, a decision was made to charge HH the full cost of his care.[66]She notes that TH was looking to raise £100,000 as equity release from the property and thereafter, when that was not able to happen (said to be due to issues with EH’s estate) his proposal was to sell the property to his son and daughter-in-law, with HH as a sitting tenant. Ms B says that when she discovered that HH had an income of £4,000 a month she queried why he could not pay for his care and this triggered an investigation by the local authority, in the autumn of 2016.[67]TH supplied to her the two sets of bank statements which have been disclosed into these proceedings. Following her detailed scrutiny of the documents, she made a referral to the Office of the Public Guardian.[68]The Applicant has referred to the conclusions of the OPG, which did not seek his removal as his father’s attorney, providing he made the application to the Court. Whether or not the OPG was satisfied with the Applicant’s explanations is not relevant to my determination which is made having had the benefit of hearing oral evidence from the Applicant, considering detailed submissions and carrying out analysis using the statutory framework.

Payments for which approval is sought

[69]Miss Robinson and Mr Hunter have helpfully set out their submissions with reference to six periods of time between February 2011 and October 2017. Miss Robinson has set them out in a table, with descriptions as to the Applicant’s role during each of the relevant periods, and the parties’ positions summarised: Period Role of Applicant Amount Applicant asks to be approved - payments to him Amount Applicant asks to be approved - for use of R1 and family Amount R1 contends should be approved 1. Feb 2011 – April 2013 Visiting HH in care home. Liaising with care home to manage HH’s care. Travelling to England to help EH. £20,938.74 £12,670 0 2. May-June 2013 Only seeks approval for payments in May 2013 when in England for last weeks of mother’s life and to arrange funeral. £1697.49 £2226.05 0 3. July-Sept 2013 Acting as live-in carer for HH with MS. Learning how to care for HH with MS. £6766.45 0 0 4. Oct 2013 - Dec 2014 Applicant providing respite relief for MS. Travelling to England for 6-18 days at a time approximately every 6 weeks. Equivalent of £800 per trip (including travel expenses) £8000 £300 0 5. Jan 2015 -May 2017 Acting as HH primary carer. From June 2015 onwards minimal respite care (PR assisting with double-handed lifting) Also took out personal loan of £5,500 to put towards HH care. Credit should be given for this. £47,320.29 0 £30,000 6. June 2017 - Oct 2017 HH in care home from 15 June 2017-22 August 2017 to give Applicant respite. Applicant resumes full-time care after HH returns from care home. Greater assistance as CHF paid for workers to attend for 10 hours per day with 3 hour break, but Applicant caring for HH for remaining 17 hours per day. £3643.80 0 0 Total £88,366.77 £15,196.05 £30,000[70]Apart from two sets of bank statements, there are no accounts, no records, no schedules of payments from the time. TH prepared some invoices in respect of care he says he provided, which match some payments made from the accounts, but they are little more than a justification for care provided after the event, they don’t tell me what hours of care were provided when. Although I do not doubt that the Applicant has spent hours of time going through bank statements and annotating them, the annotations are not consistent and again they are just subjective comments from the Applicant, often guesswork, as to what payments may have been for.[71]The figures in the table are from data supplied by the Applicant, I do not know if they truly represent the totality of sums he and his family have received during the period with which we are concerned.[72]Mr Hunter was criticised for suggesting that given the lack of evidence and formal analysis I can do little better than come up with a global figure which feels right in all the circumstances, but it is for the Applicant to prove his case and in my judgment he has made things very difficult, by virtue of his failings as an attorney, to give a proper account of expenditure.[73]Although the EPA was not registered until 2013, the court has the power to approve payments under s16 and s18(1)(b) MCA 2005 where HH lacked capacity.[74]I remind myself again of the test for approval is the best interests test under s1(5) MCA 2005:
‘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.’

Analysis and conclusions

[75]I have regard to all the evidence I have heard, and the factors set out at section 4 of the MCA 2005.[76]There is no prospect of HH’s gaining capacity and for some years now he has not been in a position to participate in any meaningful way about decisions about his welfare or management of his property or affairs. So far as HH’s past wishes and feelings are concerned, the letter of wishes signed with his wife in 2008 is a very strong indication that they both wished for their two sons to be given the same amounts, and for the gifts they had given to their sons to be equalised.[77]The evidence I have heard suggests that it was EH who managed the day to day household finances during the marriage and that, as his sons acknowledged, HH didn’t trouble himself very much with money and, if he had a need for something, would buy it. He and his wife were generous to their children and the clear sense I get is that money that came into the household was to be regarded as for the benefit of all members of the family. The intention that there should be an account of what had been given to each son so that contributions could be equalised in due course does not appear to have been backed up by any sort of record keeping, by any member of the family. This has led unfortunately to further disputes between the brothers in respect of HH’s finances but also, as reported by MH, in respect of EH’s legacy.[78]I accept TH’s evidence that his mother had indicated to him that he should not ‘go short’ as a result of his efforts to support her, HH and the wider family, most particularly in the last months and weeks of her life and at times when arrangements had to be made for HH’s care and accommodation. Further, at times when TH was living in the property and providing or paying for his father’s care, and purchasing food and household items for the benefit of himself as a member of the household as well as HH and any live-in carer, I am satisfied on a balance of probabilities that it is consistent with the evidence of EH and HH’s approach to family money in the past; such payments could be regarded as having been made in HH’s best interests in principle. The question remains as to whether the level of payments made could be regarded as being in HH’s best interests.[79]So far as the claims for care are concerned, the Applicant says that many of the items on which he spent money were in effect in lieu of a salary, and it was only later in an attempt to formalise matters that he paid himself regularly from his father’s account. I would accept that payments in kind could be ratified in principle, but again the Applicant has not helped himself by the haphazard way in which he has managed things. Essentially his position is that he has not spent all that much, and if one did a proper accounting it would probably all work out in the end and show that on balance the amounts that he used from his father’s accounts were justified as recompense for his efforts. That he had no regard to whether or not his father had sufficient funds to meet his needs and those of his family does not seem to have troubled him very greatly. I accept that this attitude towards money may well have been inherited from his father, and therefore it is arguable that he has acted in a way which is consistent with what his father’s wishes would have been, namely, to simply not trouble himself about money. However, in signing the declarations he did when he became his father’s attorney, he took on a much stricter duty. He had a responsibility to ensure that his father had sufficient funds to meet all his needs then and into the future, that he was not paying himself in excess of what the guidelines would suggest is reasonable for an attorney and/or carer to be paid, that he was keeping a careful account of all expenditure, and that he was mindful of his parents’ wishes that gifts to one brother should be equalised by a gift to the other.[80]It is no simple task to determine what amounts should or should not be allowed. Despite the impressive efforts of Miss Robinson to present the figures to me in a manageable format, in respect of each of the periods I have not been given any evidence (beyond the raw data of the bank statements themselves) which summarises or categorises or properly explains what money has been spent on.[81]Before considering what should be allowed under each period of time, Mr Hunter invites me to draw together evidence in respect of some categories of spending and come to a view as to what might be disallowed. He argues that the Court should be slow to approve all payments claimed under the following headings:(i) ‘wages’ I agree with Mr Hunter’s submission that these were paid in a very haphazard manner, and that even once wages had started to be paid, TH continued to make payments to his own accounts or otherwise for his own benefit from HH’s accounts, and payments in Ireland in respect of running the family home also continued;(ii) Ireland As accepted by TH, these are living expenses of TH’s family. Mr Hunter suggests the total number of payments over the relevant period is £35,000. Many of them were made when TH was in Ireland and not providing care to his father. As well as significant cash withdrawals, household expenditure, they included TH’s son’s phone bill, and university residence bills;(iii) Laptop/printer I agree with Mr Hunter that these items could not realistically be regarded as expenses of the deputyship.(iv) Personal expenditure for TH Items include a speeding fine, dental bills, art supplies and website costs. These payments are made on top of wages received and cannot in my judgment be regarded as family care payments.(v) Groceries TH’s evidence about these items of expenditure was not satisfactory. He said that his father had an ‘appetite like a dredger’ and he liked to give him nice food. He said that the expenditure was not just for food but all household items, but that does still not provide an explanation for the sustained high level expenditure over so many months.(vi) Bank charges Again, I accept Mr Hunter’s submission that there is a link between the mismanagement of the accounts and the charges applied by the bank and it cannot be said that these payments were made in HH’s best interests.(vii) Cash withdrawals TH accepted in evidence that approximately £16,000 had been taken out as cash from England and £13,000 in cash in Ireland (already counted for above) during the relevant period. It was said that this cash was also likely to be spent on household expenditure but no records have been kept.[82]In effect Mr Hunter is suggesting that of the original £99,950 for which approval was sought, I should disallow just short of £70,000. I note that £13,000 of the Irish cash withdrawals are also included in the £35,000 identified at (ii) above, and the Applicant has conceded that £11,210 of the sums he previously sought to be approved should not be, so that leaves Mr Hunter’s nominal figure for disallowed sums at around £45,000.[83]The sums in respect of which the Applicant no longer seeks approval are as follows: £953 in June 2013 (all sums used that month); £990.79 in July 2013 (about a third of sums used that month); £9,266.27 between October 2013 and December 2014 (just over half the sums used in that period).[84]He has not explained his rationale as to why these sums should fall outside the application and I have not been able to identify how he has decided upon these particular figures.[85]I turn now to consider the sums in which ratification is sought for each of the periods set out in the table above. Periods 1 and 2 Period Role of Applicant during this period Amount Applicant asks to be approved - payments to him Amount Applicant asks to be approved - for use of R1 and family Amount R1 contends should be approved 1. Feb 2011 – April 2013 Visiting HH in care home. Liaising with care home to manage HH’s care. Travelling to England to help EH. £20,938.74 £12,670 0 2. May-June 2013 Only seeks approval for payments in May 2013 when in England for last weeks of mother’s life and to arrange funeral. £1697.49 £2226.05 0[86]During period 1, HH was in a care home and EH was at home, her health deteriorating. EH died in May 2013 and TH remained in England to sort out the arrangements for his father to return home.[87]TH was visiting England regularly, but he was not providing any care to his father, and, to borrow from the jurisdiction of personal injury litigation, I am not satisfied that he has demonstrated that any support he was giving would be regarded as over and above the gratuitous care that might be expected to have been provided by any devoted family member in such circumstances.[88]TH had not yet registered the EPA. He appears to have been spending his father’s money on the authority of his mother to ensure that he ‘did not go short’ as a result of his efforts.[89]There is no evidence before the Court to substantiate his claim that he was prevented from earning during this period, nor objective evidence of what he was actually earning beforehand.[90]The lack of any accounts makes my task incredibly difficult. On 12th June 2013, £3,215 was paid out and TH has noted on the bank statement this was for the funeral. I would have assumed this would be covered by EH’s estate, but I have no information either way. I do not know if TH is including this payment in the sums he seeks to be ratified or not. On the same day he paid £574.36 for rent in Ireland. MS was paid £500 a week throughout the whole of June but I am not sure what services she was providing for the family where EH had died and HH was still in a care home.[91]Having said that, it is clear that family members including JPH and his son did travel from far and wide to see EH in her last weeks and months and the parties are agreed that payments of £14,896.05 to JPH should be ratified.[92]In the circumstances, I accept that HH would have wanted his family members to be with his wife on her deathbed particularly when he could not be there himself. HH’s wishes about money seem to have been consistent with EH’s views, and their intention was that gifts should be equalised, I am satisfied that the sum of £15,000 should be approved for periods 1 and 2 (to include the items payable to TH and his family on the schedule of gifts). 93. Period 3 Period Role of Applicant during this period Amount Applicant asks to be approved - payments to him Amount Applicant asks to be approved - for use of R1 and family Amount R1 contends should be approved 3. July-Sept 2013 Acting as live-in carer for HH with MS. Learning how to care for HH with MS. £6766.45 0 0[93]MS was HH’s primary carer. TH claims payments for ‘learning’ how to provide care to his father.[94]The payments to MS continued weekly but these were being covered by the allowance arising from the assessment. TH does not appear to have made any attempt to ringfence those monies; for example on 2nd July £2,000 was received into the account from the DWP and on 3rd July 2013 £2,000 was transferred to TH’s personal account.[95]There is evidence from the statement that monthly payments were made during this period to the joint bank account reference ‘bills’ of £297.50 but mostly during this period the accounts show a massive drain on resources. The July statement reports a starting balance of £27,374.90, £4,261.73 coming into the account and £29,733.67 going out. But he seeks only sums up to £6,766.45 for this three month period. Still at £2,250 a month when he was learning about his father’s needs but was not the carer, that is still a very significant sum, which is not justified on the evidence.[96]Doing the best I can with the figures I have been given, I consider it is appropriate to ratify the sum of £3,000 for this period of time, to cover expenses made in HH’s best interests to effect his transfer home, associated expenses, food and household bills. 98. Period 4 Period Role of Applicant during this period Amount Applicant asks to be approved - payments to him Amount Applicant asks to be approved - for use of R1 and family Amount R1 contends should be approved 4. Oct 2013 - Dec 2014 Applicant providing respite relief for MS. Travelling to England for 6-18 days at a time approximately every 6 weeks. Equivalent of £800 per trip (including travel expenses) £8000 £300 0[97]The Applicant no longer seeks approval in the sum of £17,266.27 but has reduced the amount to £8,000. He asserts that during this fourteen-month period he made approximately ten visits to his father and seeks approval at a rate of £800 per trip.[98]During this period of time his father was cared for by MS and by PR. I accept that TH returned to England to provide respite care, and that he would have had to oversee the arrangements for his father’s care and support the carers.[99]I accept that some payments to him to facilitate this care and provide for household expenses would be in HH’s best interests but I still struggle to see that the extent of payments sought to be authorised is compatible with his role as an attorney.[100]I ratify the sum of £5,000, and approve the further gift of £300 to R1. 103. Period 5 5. Jan 2015 -May 2017 Acting as HH primary carer. From June 2015 onwards minimal respite care (PR assisting with double-handed lifting) Also took out personal loan of £5,500 to put towards HH care. Credit should be given for this. £47,320.29 0 £30,000[101]This is 29 months, so approximately £1,631.72 per month is sought to be approved.[102]I am not persuaded that credit should be given for the personal loan because finances were so intermingled, TH admitted that he essentially used the account as his own for the benefit of his family. He accepts in his statement that loan repayments were made from his father’s account.[103]I have regard to the OPG guidelines in respect of family care payments. I am satisfied that the sums claimed represent the cost of TH providing care during this period. There is no doubt the care was required to meet HH’s needs and that it was of a good standard. Compared to the cost of MS it is a significantly lower spend.[104]In all the circumstances, I do consider these payments were made in HH’s best interests and I approve the sum as claimed for this period, £47,320.29. 108. Period 6 Period Role of Applicant during this period Amount Applicant asks to be approved - payments to him Amount Applicant asks to be approved - for use of R1 and family Amount R1 contends should be approved 6. June 2017 - Oct 2017 HH in care home from 15 June 2017-22 August 2017 to give Applicant respite. Applicant resumes full-time care after HH returns from care home. Greater assistance as CHF paid for workers to attend for 10 hours per day with 3 hour break, but Applicant caring for HH for remaining 17 hours per day. £3643.80 0 0[105]HH was in a care home for ten weeks during this period. TH is claiming £3,643 for the remaining eight weeks. Once HH returned home he was funded with ten hours of professional care a day. While I accept that TH was on duty for the remainder of the time, and there would have been some overlap when was providing care alongside the professional carer, he cannot have been actively engaged in caring duties for seventeen hours, but he has limited the amounts for which he seeks authority to about £450 a week.[106]In my judgment the appropriate amount to approve for this period is £2,500.

Conclusions

[107]I have approved the following payments: Periods 1 and 2: £15,000 Period 3: £3,000 Period 4: £5,000 Period 5: £47,320.29 Period 6: £2,500 Total: £72,820.29[108]I propose to approve payments to and for the benefit of TH and his family in this sum.[109]As a form of cross-check, I have assessed on a broad-brush basis that from a starting point of £99,500, I would consider it reasonable to disallow about £40,000 to £45,000 in respect of the items identified by Mr Hunter in his submissions as being payments not made in HH’s best interests. By contending for authority in respect of just £30,000 he contended for £70,000 to be disallowed, but I have reduced that to reflect the £11,000 concession by the Applicant and the £13,000 Irish cash withdrawals which I find to have been double-counted.[110]I have then added in £15,000 for periods one and two to equalise the gifts made to family members. This approach gets me to a very similar result to that which I have achieved by considering what I would allow for each period.

Approval of gifts

[111]As agreed by the parties, I approve the gifts made for the benefit of JPH and his family members, totalling £15,196.05, as listed on the schedule. So far as the payments on the schedule to TH and his family members, I have included these in the £15,000 I approved under periods 1 and 2. The gifts to MS and PR are separately ratified.

Directions in respect of non-approved sums

[112]The Court of Protection has no jurisdiction to order TH to repay the sums directly. It is not in HH’s best interest to pursue the sums not approved by litigation; this would result in further expense, whilst serving no purpose as the Applicant could not repay them.[113]This dispute has led to a depreciation of HH’s funds. The cost of a panel deputy will use up a significant proportion of his income in the future. The dispute has taken up significant resources from the local authority, the OPG and the Court to investigate and resolve. It would in my judgment be wholly disproportionate to order that the panel deputy carried out a further investigation into the matters which have already been the subject of this lengthy litigation, by directing TH to provide any further account to the Panel Deputy. There is no prospect of any better evidence being obtained.[114]In my judgment the unapproved sums should be accounted for from TH’s share of the residuary estate of HH and if that share is insufficient to cover them, it should be treated as a debt owed by the Applicant (or his estate) to the estate of HH.

Costs

[115]This is a property and affairs application. Under r19.2 COPR 2017 the general rule is that the costs of the proceedings shall be paid by P or charged to P’s estate. The court may depart from this general rule if the circumstances so justify (r19.5), having regard to all the circumstances of the case including the conduct of the parties, and whether a party has succeeded on a part of his case even if he has not been wholly successful. The conduct of the parties includes whether it was reasonable for a party to raise, pursue or contest a particular issue.[116]Miss Robinson has referred me to the cases of D v R (Deputy of S), S [2010] EWHC 3748 (COP) and In re A (a patient) (Court of Protection: costs order) [2016] EWCOP 38, both of which I have read and considered.[117]While I have been critical of the way in which the Applicant carried out his responsibilities, and regard his default as more than technical omission, in the event I have accepted that the significant majority of payments sought to be ratified should be approved; I have ended up with a figure that is much closer to the Applicant’s than the Respondent’s. There is no need for bad faith to be established in order for there to be a departure from the usual rule, but for the avoidance of doubt, I do not find that TH has acted in bad faith in all the circumstances.[118]As to the issues between the parties, the proceedings were necessitated by the conduct of the Applicant leading to the request of the OPG that he issue proceedings, but that does not disapply the usual rule; it is not the case that an attorney is always held liable for costs of proceedings brought in such circumstances. There were opportunities for the dispute to be resolved in discussion, which following the investigation all the other parties did so. There were also a number of other issues in the case that were raised by the First Respondent which required the Applicant to respond in detail and some of these issues were only conceded at or shortly before the final hearing Sale of the property; identity of the deputy; statutory will; removal of TH as deputy for welfare. . It is arguable therefore that while the initial need for the litigation was caused by TH’s deficiencies as attorney, that the litigation has continued to a full hearing leading to significant costs are as much driven by one brother as the other.[119]In all the circumstances I am not satisfied that I should depart from the usual rule as to costs and will direct that they are paid by P or his estate, save that the trustees for EH have proposed that their costs be met by EH’s estate.

Conclusions

[120]I hope that the parties may be able to agree an order that reflects their agreement in respect of some issues, and my decision in respect of those which remained in dispute.[121]I would like to extend my apologies to the parties and their representatives for the delay in completing this judgment; it has proved very difficult to find the time amidst a busy work schedule to devote the attention that was required.[122]I sincerely hope that following the completion of these proceedings both TH and JPH, and members of their families, will be able to spend valuable time with HH, and that in the future their conflicts may be resolved without the strain and stress that have unfortunately accompanied these proceedings. Her Honour Judge Joanna Vincent Nominated judge of the Court of Protection, at Oxford Draft judgment sent by email to parties: 8th May 2018 Judgment handed down in the absence of the parties: 16th May 2018