P was born on 6th February 1933 and is an 82 year old woman who has lived in a residential care home since 20th March 2015.
P had four children, Gary aged 60 years, Keith born in 1956 but died in 2005, Julian aged 49 years and Lisa aged 47 years.
P executed an EPA in 2005 and she appointed Julian to be her sole attorney.
P was diagnosed with Alzheimer’s dementia on 12th February 2015. P has a house worth £140,000 and life savings of £100,000. P has debt of approximately £30,000; this includes the care home fees. The care home fees are £850 per week.
The LA received an anonymous phone call that Gary and Julian were selling off P’s personal effects and were planning to let her property. The police were involved but there is no ongoing investigation.
On 1st June 2015 the authorised court officer made an interim order authorising the LA to secure P’s property and change the locks.
Julian objected to the application stating that P made an EPA and was submitted to the Office of the Public Guardian (‘OPG’) on 29th May 2015.
The court consolidated the application for an appointment of a deputy with any objections to the registration of the EPA on 3rd July 2015.
On 17th July 2015 the LA made an application to suspend the EPA which had been registered by the OPG on 6th July 2015 and authorising the LA to prevent disposal P’s property pending the decision of the court. An order was duly made.
LA’s further concerns
Through a number of witnesses the concerns raised were:
- Gary and Julian had neglected P’s needs by allowing the home to fall into a poor state of repair and by failing the LA’s recommendations to arrange support and care for P at her home.
- Gary and Julian moved in with P for a short period but then left her alone with no running hot water and a large dog to take of.
- If P lived at home with her sons some family members would not visit due to conflict.
The court considered paragraphs 16(4)(g) of Schedule 4 to the Mental Capacity Act 2005 (‘the Act’) for the revocation and cancellation of the registered EPA. The court can cancel the registration of the EPA if it is satisfied having regard to all the circumstances that the attorney is unsuitable to be the P’s attorney. Further if the court directs cancellation of the registration of the EPA, it must order that the power created by the EPA should be revoked.
The court considered Re W (Enduring Power of Attorney)  3 WLR 45; Re E (Enduring Power of Attorney)  3 WLR 1974; and Re F  3 ALL ER 277. The court cited paragraph 284f in Re F:
‘It seems to me that to remove a chosen attorney because of hostility from a sibling or other relative, in the absence of any effective challenge to his competence or integrity, should require clear evidence either that the continuing hostility will impeded the proper administration of the estate or will cause significant distress to the donor which would be avoided by the appointment of a receiver. Neither of these conditions is satisfied by the evidence in this case.’
The court allowed the LA’s application and revoked the EPA on the ground that Julian is unsuitable to be P’s attorney based on Julian doing nothing or very little, the neglect of P, and the hostility between the family.
The court accepted that Julian failed to ensure P was provided with the care she needed, even the most basic care, even though he was aware of P’s needs. The court found that P was left for a period without any or appropriate support or care. Julian had left the property leaving P alone despite her deteriorating mental and physical health.
Although P had the funds for private care, and Julian stated that he was happy to arrange it, this never materialised.
The court did not find that Julian disposed of P’s personal effects and did not criticise Julian for attempting to let the property as it was a wise commercial decision.
The judge was critical of Julian as he lacked urgency and was doing the bare minimum and this was not in P’s best interest.
Julian failed to ensure the property was insured. The court reiterated paragraph 1(2)(a) of Schedule 4, which allows an attorney to take steps, pending registration of the EPA, to prevent loss to the estate. Even though P did not insure the property when she had capacity, Julian should have taken steps to insure the property when P lost capacity.
There was real hostility between Lisa and Gary and although Julian cannot delegate his authority to someone else he appeared to have done so to Gary.
This is another example of where attorneys do not work in the best interests of the P, and another sad example of a bitter relationship between family members that make it difficult, and not in P’s best interest, for the chosen attorney to carry out their functions suitably.
Read the full text of the judgment on Bailii