IMPORTANT NOTICE

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No: 12601656   

Neutral Citation Number: [2015] EWCOP 32 (Fam
COURT OF PROTECTION
MENTAL CAPACITY ACT 2005
IN THE MATTER OF MC
First Avenue House
42-49 High Holborn
London WC1V 6NP

Date: 6 May 2015

Before:

SENIOR JUDGE LUSH

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Between:

	THE PUBLIC GUARDIAN	Applicant	
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	SR and NC	Respondents	

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Fatima Chandoo of the Office of the Public Guardian
The respondents in person and unrepresented

Hearing date: 20 April 2015
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JUDGMENT
Senior Judge Lush:

1.	This is an application by the Public Guardian for an order revoking a Lasting Power of Attorney (‘LPA’) for property and affairs and directing him to cancel its registration. Because of the nature of the application, I am required by the practice guidance on Transparency in the Court of Protection: Publication of Judgments, [2014] COPLR 78, to allow this judgment to be published. 

The background

2.	MC was born on 8 October 1937. 

3.	She used to live in Camberley, Surrey, but is now in a residential care home in Aldershot. 

4.	Her husband, who was a plumber, died from mesothelioma in 2004.

5.	She has two children:
(a)	a son, NC, who is 54, lives in Hampshire and is a mechanic; and
(b)	a daughter, SR, who is 49, lives in Surrey and is a domiciliary carer.

6.	On 12 June 2009 MC executed an LPA for property and affairs, in which she appointed SR and NC jointly and severally to be her attorneys.

7.	A solicitor in Reading witnessed her signature and certified that she had the capacity to create a lasting power of attorney. An application was made, almost immediately, to the Office of the Public Guardian (‘OPG’) to register the power, and it was registered on 24 September 2009. 

8.	On 28 October 2011 MC made a will with a different firm of solicitors - a firm in in Yateley, Hampshire - in which she left 95% of her estate to SR and the remaining 5% to NC.

9.	In March 2013 SR placed MC’s house in Camberley on the market and instructed yet another firm of solicitors – this time in Stockport, Cheshire - to act for her in connection with the sale.

10.	NC had begun to suspect that SR was mismanaging their mother’s finances and on 22 April 2013, on his application, the Land Registry entered a restriction on the proprietorship register relating to MC’s property stating that “No disposition of the registered estate by the proprietor of the registered estate is to be registered without a written consent signed by [NC].”

The application

11.	On 24 November 2014 the Public Guardian applied to the Court of Protection for the following orders: 

1.	An order under section 22(4)(b) of the Mental Capacity Act 2005 for the revocation and cancellation of the registered Lasting Power of Attorney made by MC. 

2.	An order directing that Hampshire County Council be invited to make an application for appointment as deputy to make decisions on behalf of MC in relation to her property and affairs.

12.	Accompanying the application was a witness statement made by Sarinder Malhi, an investigations officer with the OPG, who said that:

(a)	On 1 May 2014 it was brought to the OPG’s attention that SR had spent a significant amount of MC’s money on adaptations to her own property and going away on frequent holidays. 
(b)	There were unpaid care fees of £3,668.
(c)	On 21 May 2014 the OPG wrote to both attorneys and NC replied that he had not been involved in managing his mother’s financial affairs; they had been handled solely by his sister.
(d)	An analysis of the bank statements submitted by SR revealed that she had spent £451,513 of her mother’s money. This consisted of cash withdrawals of £220,799; cheques totalling £44,966; payments for holidays amounting to £8,993 and bank transfers totalling £176,755. 
(e)	A Court of Protection General Visitor visited MC on 4 June 2014 and was of the view that because of her dementia she lacks the capacity to revoke the LPA.
(f)	At the time of the application MC’s house in Camberley was on the market for £369,950.

Procedural history

13.	On 2 December 2014 I made an order requiring:
(a)	the OPG was to serve the papers on the two attorneys by 12 December;
(b)	the attorneys to file any evidence in response by 9 January;
(c)	Hampshire County Council to lodge a deputy’s declaration by 9 January; and
(d)	the matter to be referred back to a judge on or after 12 January 2015.

14.	On 29 December 2014 Hampshire County Council confirmed that it was willing to act as MC’s deputy for property and affairs.

15.	On 6 January 2015 NC filed an acknowledgement of service in which he said that he did not agree with the order that the Public Guardian was seeking. He proposed the following order, instead:

“LPA jointly and severally is revoked but LPA singular is appointed to NC. If this is not an option, are [NC’s daughters] eligible to fulfil this role?” 

16.	On 7 January 2015 SR filed an acknowledgment of service, which was in effect a blank return.

17.	On 4 February 2015 I made an order setting out a timetable for filing and serving any further evidence and submissions and listed the matter for hearing.

18.	None of the parties filed any further evidence.

The hearing

19.	The hearing took place on Monday 20 April 2015 and was attended by:
(a)	Fatima Chandoo of the OPG;
(b)	SR, who was accompanied by a friend; 
(c)	NC and his wife; and
(d)	Bernice Scott and Donna Hammond of Hampshire County Council.

20.	The general rule is that hearings in the Court of Protection are held in private (Court of Protection Rules 2007, rule 90) but, on this occasion, a delegation of a dozen lawyers from the Japanese Federation of Bar Associations sat attentively at the back of the courtroom observing the proceedings.

21.	Fatima Chandoo said that the OPG had not received a clear and accurate account of MC’s financial affairs from either of the attorneys. She felt that NC had made no serious attempt to take on his role as an attorney, other than to place a restriction on dealings with the property in Camberley. The Public Guardian was also of the view that an ongoing attorneyship would not work because of the fraught relationship between SR and NC.

22.	NC confessed that he had made a serious error of judgment in allowing his sister to add her name to their mother’s bank accounts. His hands had been tied as far as her financial dealings were concerned. The relationship between him and his sister had broken down in 2011/2012. When the bank manager told him there wasn’t much left in MC’s accounts, he anticipated that the next thing that SR would do was to sell the house, so he entered a restriction at the Land Registry.

23.	I asked NC whether he had any plans to take action to restore his mother’s assets to the position they would have been in but for his sister’s misappropriation of her funds. He said he didn’t know what to do, but that he wouldn’t wish his sister and her family to be made homeless. Nor did he want the police to be involved. He said that his daughters were taking their A Levels in the summer, and once these are out of the way, he would start sorting out his mother’s affairs.

24.	SR confirmed that she supported the Public Guardian’s application and was happy for Hampshire County Council to take over the management of her mother’s property and financial affairs.

25.	She apologised for her misconduct and said that she had been suffering from depression several years and had been on medication for it. Having to care for her mother around the clock was the straw that broke the camel’s back.

26.	She opposed her brother’s appointment as sole attorney, because they tend to squabble and she believes that he is more interested in MC’s money than in her well-being. She said he rarely visits their mother. NC denied this and thereafter they bickered at one another. SR took particular exception to her sister-in-law’s presence at the hearing. She said it was none of her business.

27.	On behalf of Hampshire County Council, Bernice Scott confirmed that, although SR had been making regular payments towards MC’s care fees, the arrears had risen to £7,900.  

28.	In response to my question whether the Council would seek to restore MC’s finances to the position, Ms Scott said the Council would certainly look into the matter and carry out further investigations, and that it may even consider approaching the police. 

29.	SR interjected that the police had interviewed her on 5 January 2015 and told her that they did not intend to bring any charges.

30.	In reply to a question I asked about remuneration, Bernice Scott said the Council would be charging a fixed rate in accordance with the court’s Practice Direction 19B, whereby a public authority deputy is entitled to be paid an annual management fee of sum not exceeding £700 during the first year and £585 thereafter.

31.	On hearing this, SR changed her mind about the Council acting as deputy. She had assumed that it would be acting gratuitously. 

The law relating to the revocation of an LPA

32.	The Public Guardian’s application was for an order revoking and directing him to cancel the registration of the LPA.

33.	Section 22 of the Mental Capacity Act 2005 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’.

34.	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.”

35.	Section 22(4) provides that:

“The court may –
(a)	direct that an instrument purporting to create the lasting power of attorney is not to be registered, or
(b)	if P lacks capacity to do so, revoke the instrument or the lasting power of attorney.”

36.	Section 22(5) provides that:

“If there is more than one donee, the court may under subsection (4)(b) revoke the instrument or the lasting power of attorney so far as it relates to any of them.”

37.	Many of the provisions of the Mental Capacity Act were originally drafted by the Law Commission and appeared as an appendix to its report on Mental Incapacity (Law Com No 231), published in 1995. At paragraph 7.51 of their report the Law Commissioners explained why section 22(4)(b) is expressed in the way that it is:

“It will be remembered that the fact that [an LPA] has been registered will in future signify only that the attorney expects to seek to use it, rather than that the donor is losing capacity. The powers of the court to direct or control the attorney should only arise in relation to matters where the donor no longer has capacity, and the draft Bill therefore provides that the court should have power to give directions to the attorney and to give any consent or authorisation which the donor might have given had he or she had capacity.”

38.	At paragraph 7.58 of its report on Mental Incapacity the Law Commission gave the following rationale for the wording of section 22(3)(b):

“The [Enduring Powers of Attorney Act 1985] provides that the court shall cancel the registration of, and revoke, an EPA if “the attorney is unsuitable to be the donor’s attorney”. In Consultation Paper No 129 we suggested that this power to revoke should be linked to the question of whether the attorney was acting in the donor’s best interests. Respondents supported this proposal, with some seeking reassurance that the court should not be able to override a patient’s advance decisions about healthcare by revoking the appointment of an attorney. We have already recommended that an attorney under [an LPA] should be under a duty to act in the donor’s best interests. It is therefore logical to use this terminology, rather than that of “unsuitability”, in relation to the court’s power to displace an attorney. Express provision should also be made for revocation by the court where an attorney’s acts contravene the terms of the authority granted by the donor. We recommend that the court may, on behalf of a donor without capacity to do so, either direct that a purported [LPA] should not be registered or revoke [an LPA] where the donee or intended donee has behaved, is behaving or proposes to behave in a way that (1) contravenes or would contravene the authority granted in the [LPA] or (2) is not or would not be in the donor’s best interests.”

39.	In Re J [2011] COPLR Con Vol 716, at paragraph 75, Her Honour Judge Hazel Marshall QC suggested that the court should take the following approach when considering an application for the revocation of an LPA based on the donee’s behaviour:

“In my judgment, the key … lies in considering the matter in stages. First, one must identify the allegedly offending behaviour or prospective behaviour. Secondly, one looks at all the circumstances and context and decides whether, taking everything into account, it can be fairly characterised as such. Finally, one must decide whether, taking everything into account … it also gives good reason to take the very serious step of revoking the LPA.”

Decision

40.	I am satisfied that MC is unable to revoke the LPA herself. I accept the report, dated 5 June 2014, of the Court of Protection Visitor, Elaine Bruley, who said that:

“MC is diagnosed with dementia. The visitor is not aware of the date of the diagnosis, however. Apparently she started to show signs of dementia following her husband and mother’s deaths (2004 and 2008). She is not aware of what powers an LPA gives and is unable to retain that information. MC is unable to identify the possible consequences of revoking or suspending the LPA or not revoking or suspending it. She is unable to weigh information relevant to the decision to revoke or suspend, e.g. wrongdoing on the part of the attorneys.”

41.	Unquestionably, SR has behaved in a way that has contravened her authority and is not in MC’s best interests. But what of NC’s behaviour?

42.	He openly admits that he made an error of judgment in allowing his sister to manage their mother’s accounts, but he never expected her to behave in the way she did.

43.	There is a superficial similarity to the facts in Re ID [2015] EWCOP 19, where ID executed an LPA appointing her two sons, MD and BW, to be her attorneys. MD assumed primary responsibility for managing her financial affairs and fraudulently abused his position of trust. BW claimed that he had left the management of ID’s property and financial affairs to MD, and that he had no reason to doubt his probity and integrity. But there the similarity ends. 

44.	The differences, which in ID’s case warranted the revocation of the LPA, were that:
(a)	ID had appointed her attorneys to act jointly, rather than jointly and severally, and BW should have acted jointly with his brother at all times, rather than let MD have a free rein. He was therefore jointly liable for any loss to ID’s estate; and
(b)	I did not believe BW’s story that he had absolutely no involvement in mother’s financial affairs. In fact, he had opened an account in his sole name into which her pension and rental income were paid.

45.	The Public Guardian criticised NC for not making any serious attempt to assume his role as attorney, and indirectly accused him of inertia. I have to say that I was disappointed by the apparent lack of urgency when he suggested that he would start sorting out his mother’s financial affairs in the summer, once his daughters’ A Levels were out of the way.

46.	His indecisiveness in response to my question whether he had any plans to take action to restore MC’s assets was understandable, and showed sensitivity towards his sister in her present predicament.

47.	Nevertheless, NC did take a major step towards safeguarding his mother’s assets by entering a restriction at the Land Registry to prevent any disposition affecting her property in Camberley.

48.	The Public Guardian also suggested that the continued operation of the LPA, with registration being limited to NC acting as the sole attorney, would not work because of the fraught relationship between him and his sister, SR, who, of course, opposed NC’s proposal that he should remain as the sole attorney. 

49.	I am not convinced that the relationship between SR and NC would, in fact, impede the proper administration of MC’s estate. Although they bickered occasionally during the hearing, they hugged each other at the end of the proceedings, and there was no sense of the intense animosity that was evident in other cases, such as Re ED [2015] EWCOP 26 and Re EL [2015] EWCOP 30.

50.	Although I have no doubt that the authorised officer for property and affairs deputyships of Hampshire County Council is considerably more experienced than NC in managing other people’s money, and that the service provided by the Council is actually very good value for money, in my judgment, it would be in MC’s best interests to allow her LPA to remain in force with her son, NC, acting as the sole attorney.

51.	The factor of magnetic importance is that, as far as it possibly can, the court should respect MC’s wishes as expressed in her LPA.

52.	In addition, I am not satisfied that NC has behaved or proposes to behave in a way that contravenes his authority or is not in MC’s best interests, Accordingly, there are no grounds on which I am able to revoke his appointment.