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.

Neutral Citation Number: [2014] EWH 36 (COP)
Case No: 12511819   

COURT OF PROTECTION

MENTAL CAPACITY ACT 2005

First Avenue House
42-49 High Holborn, 
London WC1V 6NP

Date: 9 October 2014

Before:

Senior Judge Lush

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Re JL (Revocation of Lasting Power of Attorney) 

Between:

	THE PUBLIC GUARDIAN	Applicant	
	- and -		
	    AS (1)
- and- 
    ESSEX COUNTY COUNCIL (2)	

Respondents	
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Fatima Chandoo for The Public Guardian
AS in person
Robin Donaldson for Essex County Council 

Hearing date: 2 October 2014
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JUDGMENT
Senior Judge Lush:

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

2.	In accordance with the President’s guidance on the publication of judgments [2014] COPLR 78, I am required to publish a judgment arising from “any case where the issues include whether a person should be restrained from acting as an attorney or a deputy or that an appointment should be revoked or his or her powers reduced.”

3.	I have anonymised the names of the donor, JL, and her daughter and attorney, AS. The guidance provides that “anonymity in the judgment as published should not normally extend beyond protecting the privacy of adults who are the subject of the proceedings and other members of their families, unless there are compelling reasons to do so.”

The background

4.	JL was born in 1938 and lives in her own home in Essex.

5.	She has been married three times and, although she is still married to her third husband, who lives in Brighton, they have been estranged for the last twenty years.

6.	She has two children from her third marriage: 
(a)	a daughter, AS, who was born in 1980, lives in Essex and is unemployed; and
(b)	a son who was born in 1983, lives in Sheffield and is a mortgage broker.

7.	JL has Alzheimer’s disease.

8.	On 8 October 2013 she executed a digital LPA for property and financial affairs and, as far as I am aware, this is the first occasion on which the court has considered a digital LPA in the context of an application to revoke the appointment of an attorney.

9.	The LPA was drawn up by JL’s daughter AS online and, perhaps not surprisingly, JL appointed AS to be her sole attorney. She did not receive any independent advice about the creation of the LPA, though AS claims that she fully explained the document to her mother before she signed it.

10.	A friend of the family witnessed JL’s signature and acted as the certificate provider. The function of the certificate provider is to certify that:
(a)	the donor understands the purpose of the LPA and the scope of the authority conferred under it;
(b)	no fraud or undue pressure is being used to induce the donor to create the LPA; and
(c)	there is nothing else which would prevent the LPA from being created by the completion of the prescribed form.

11.	An application was made to the Office of the Public Guardian (‘OPG’) to register the LPA and it was registered on 3 December 2013.

The application

12.	Exactly six months later, on 3 June 2014, the Public Guardian applied to the Court of Protection for the following order: 

1.	The applicant seeks an order for the immediate suspension of AS as attorney for JL and for the revocation and cancellation under section 22(4)(b) of the Mental Capacity Act 2005 of the registered property and financial affairs LPA created on 8 October 2103.

2.	An order directing that Essex County Council be invited to make application for their appointment as deputy to manage JL’s property and financial affairs.

3.	An order granting Essex County Council the general power and authority to access funds held in the name of JL in (an HSBC account) for the use and benefit of JL pending their appointment as deputy.

4.	An order directing that upon AS’s suspension as attorney that she is forbidden to withdraw, transfer, dispose of or in any other way deal with the funds held in the name of JL in (various assets).

13.	The evidence in support of the application can be summarised as follows:

(a)	Essex County Council reported its concerns to the OPG on 24 April 2014.
(b)	Copies of JL’s bank statements revealed that there had been a number of excessive and uncharacteristic withdrawals from her funds. 
(c)	From 18 January to 9 April 2014 there had been twenty-five cheque withdrawals ‘paid to cash’ totalling £4,290. These payments averaged £171 and were withdrawn every few days.
(d)	Over the same period JL’s only capital asset other than her home had halved in value to £10,669 and, at the current level of expenditure, her funds would be entirely depleted within nine months.
(e)	The investigator at the OPG spoke over the phone to JL’s social worker, Sharon Morris, who stated that a man, who had recently been released from prison, had offered JL £100 to perform a sexual act for him.
(f)	JL had told Sharon Morris that her attorney kept her so short of money that she considered prostitution as the only way of resolving the problem.
(g)	In particular, JL said she needed the money so that she could pay the train fare from Sheffield for her son to visit her (£100) and to compensate him for the overtime he would otherwise have earned but for the visit (£80).
(h)	AS, on the other hand, claimed she gave her mother £600 a month spending money.
(i)	JL was paying £32 a month for her daughter’s T-Mobile phone contract, but many other bills were left unpaid and she owed £946 to Npower. 

14.	A Court of Protection General Visitor, Emma Farrar, visited JL on 22 May 2014 and in her report of the visit said:

“The visitor does not believe the donor has capacity to understand the concerns, to revoke or make a new LPA. She is totally reliant on the attorney and seems to be led by whatever she says. She didn’t want to meet with or talk to the visitor without her daughter present and was quite defensive throughout the meeting and rejected any suggestion that the attorney may not be using her funds appropriately.”

15.	On 10 June 2014 I made an order:
(a)	suspending AS’s appointment as attorney;
(b)	appointing Essex County Council as interim deputy for property and affairs;
(c)	requiring the Public Guardian to serve the papers on AS straightaway; and
(d)	inviting AS to respond to the application by 14 July 2014.

The objection

16.	AS approached GT Stewart Solicitors & Advocates, London SE5, to advise and assist her under the Legal Help Scheme operated by the Legal Aid Agency (‘LAA’). However, they were not funded by the LAA to provide her with representation in these proceedings and could not formally serve or accept service of documents on her behalf. Nevertheless, they assisted her by drafting a statement and submissions.

17.	On 11 July 2014 AS filed an acknowledgment of service in which she opposed the application. She said: 

“If the court decides to revoke the LPA and considers that a deputy for property and affairs needs to be appointed for my mother, I do not agree that it would be in her best interests for that deputy to be Essex County Council. I think that it would be better for my mother if my brother or my father were appointed to act as her deputy, and I think that they should be given the opportunity to be considered in that role.”

18.	The acknowledgment of service was accompanied by an unsigned and undated witness statement, in which AS set out her response to the allegations. 

19.	On 1 August 2014 I made a further order setting out a timetable for the filing of further evidence and listing the matter for hearing.

20.	The hearing took place on 2 October and was attended by:
(a)	Fatima Chandoo and Nadia Dhillon of the OPG;
(b)	AS and her father; and
(c)	Robin Donaldson from Legal Services, Essex County Council, and Sharon Morris, JL’s social worker.

Decision

21.	Subsections (3) and (4) of section 22 of the Mental Capacity Act 2005 provide that, in order to revoke the LPA, I need to be satisfied that:
(a)	AS has behaved in a way that contravenes her authority or is not in JL’s best interests; and
(b)	JL lacks capacity to revoke the LPA herself.

22.	I am, indeed, satisfied that AS has behaved in a way that contravenes her authority and is not in JL’s best interests. 
(a)	She admits that she failed to keep proper accounts and financial records.
(b)	Her explanation for the dramatic increase in JL’s expenditure was “there is no point in her being the wealthiest woman in the graveyard.” 
(c)	She profited from her position by using her mother’s money to pay her own mobile phone bill. 
(d)	There is evidence that she placed JL under pressure regarding this matter.

23.	I shall consider these reasons in a little more detail. First, AS admits that she failed to keep proper records and accounts. At the hearing she said she did not know she had to keep accounts and that she had not read the declaration in Part C of the prescribed form of LPA, which she had signed. It says:

“I understand my role and responsibilities under this lasting power of attorney, in particular:
o	…
o	…
o	I have a duty to keep accounts and financial records and produce them to the Office of the Public Guardian and/or to the Court of Protection on request.”

24.	This admission is damning enough, but it gives rise to additional concern about the circumstances in which the LPA was created. If AS failed to read Part C, it makes it hard to believe her assertion that she had carefully read and explained to her mother the contents of Part A of the LPA – the part that the donor is required to complete.

25.	AS’s retort that there was no point in her mother being the wealthiest woman in the graveyard is trite and misses the point. JL is far from being a wealthy woman and what funds she has should be applied for her benefit and in her best interests. She lives in squalor. When Social Services initially visited her on 1 July 2013 they observed animal faeces on the carpets from her dog and three cats. Her food had a layer of mould on it, but she was nevertheless reheating and eating it, and she had neither washed nor changed her clothes for six months. 

26.	Even though her living conditions have improved as a result of the care package Essex County Council has put in place, and since October 2013 a close neighbour called Sharon has been formally employed as her carer, her house is in need of an intensive deep clean and disinfection. The Council recently obtained a quote from Rentokil to clean the property for £6,000 or £7,000, but the cost is prohibitive and the Council is considering alternatives through its environmental health services. In addition, JL has an urgent need for properly functioning white goods. 

27.	At the hearing AS’s father said that, prior to the onset of her incapacity, JL had always paid AS’s rent and mobile phone bill and she had always paid her son’s train fare to visit her. Again, this misses the point.

28.	The onset of her incapacity required an appraisal of her funds and a consideration of the extent to which they need to be applied for her benefit now and the extent to which they should be retained and prudently invested to provide for her future requirements and comforts. She is only 76. She could have a life expectancy of five years or more. Paying her daughter’s mobile phone bill and compensating her son for his loss of overtime earnings are no longer priorities in the application of her funds. 

29.	Finally, as regards AS exerting pressure on JL, in her witness statement dated 26 September 2014 JL’s social worker, Sharon Morris, said:

“JL has discussed concerns regarding her relationship with her daughter AS with me on several occasions. JL can get very anxious when at times she cannot contact her for days. She does not answer her calls or the door when she visits. On the occasions she does meet with her daughter she reports that she shouts at her and pressurises her for money.”

30.	I have to say that from my own observation of AS’s demeanour at the hearing that she came over as forceful and persistent and I imagine it would be difficult for a lonely, vulnerable woman with a cognitive impairment to resist complying with her wishes and demands. 

31.	I am also satisfied that JL lacks capacity to revoke the LPA herself.  In addition to the evidence of the Court of Protection Visitor, which is set out in paragraph 14 above, Sharon Morris stated:

“Based on the evidence following our meeting with JL, I would suggest she lacks capacity around the specific issue of the need to raise a safeguarding regarding her finances. JL was unable to weigh up the need to investigate the amount of funds leaving her bank account.”

32.	Referring to the LPA as a ‘POA’ (power of attorney), Sharon Morris also stated:

“On 28th August 2014 I visited JL. The following conversation took place. JL said she met AS the other day at the golf course. JL said she was shouting at her as she wanted to be in control of the POA. I asked how she would feel if AS regained the POA. JL said, “I don’t think she did a very good job.” She said “I love having Sharon as my carer and have three lovely meals a day.” She said, “I no longer feel lonely.”

On the same visit I asked JL’s feeling on her ex-husband taking over POA. JS made a grimacing face. I asked why she was making that face and she turned up her nose and said, “I would be most annoyed.” I asked why she would be annoyed. JL replied, “He lives in Brighton and my finances would not be mine.” I asked if there were any other reasons as it is not always about distance, we could sort something out. JL replied, “I don’t think he is very caring.”

I also asked her views of her son being POA. She said “Oh, I don’t think so.” I asked her what her reasons were. She said, “He lives in Sheffield. It’s too far away. How would we be able to work things out?” Again she said “I like Essex Guardians managing my money. They pay all my bills.””

33.	I am satisfied that (1) AS has behaved in a way that contravenes her authority and is not in JL’s best interests, and (2) JL lacks capacity to revoke the LPA herself, and I shall revoke the LPA for her. 

34.	With regard to the appointment of a deputy for property and affairs, I consider that it would be in JL’s best interests to appoint the authorised officer for property and affairs deputyships of Essex County Council as her substantive deputy. He is already acting as her interim deputy by virtue of my order of 10 June 2014 and JL has expressed a preference that he should continue to manage her funds.