ID [2015] EWCOP 19

This case considers an application by the Office of Public Guardian (‘OPG’) under section 22(4) of the Mental Capacity Act 2005 (‘the Act’) to revoke a Lasting Power of Attorney (‘LPA’) in relation to property and affairs as the attorneys behaved in a way that was outside their authority and not in the Patient’s (‘P”) best interests.  

The application also requested that there be an immediate freezing of P’s accounts, and that a member of the panel of deputies be invited to act as P’s deputy.

The Facts
The Patient (“P”) was born in 1928 and is an 86 year old woman who moved into a residential care home in May 2013.

P’s husband died in 1977 when he was 52 years old.

P’s has two sons, BW aged 60 years and MD aged 57 years.

On 27 March 2009 P executed an LPA for property and affairs to BW and MD, jointly. 

The LPA was registered by the OPG on 28 September 2009.

Concerns
The concerns raised to the OPG by Cornwall County Council were:

• Unpaid care fees totalling £31,392.60; 
  
• P was not receiving a personal allowance;  
  
• The OPG had requested the respondents to provide an account, with a reminder when they failed to do so;
  
• BW had asked for an extension of time as he had a meeting with the Council to discuss matters;
  
• Building works had been carried out on P’s property to produce two flats in order to generate an income;
  
• MD and his wife were occupying the flat upstairs, supposedly paying rent, and the flat downstairs was used as a holiday let;
  
• There were unaccounted payments from P’s account totaling £24,540.61
  
• The Court of Protection Visitor saw P on 4 July 2014 and confirmed that she lacked capacity to revoke the LPA.
  

The court made an order freezing the accounts and made an order that the OPG serve the application on the respondents, and that the respondents were to reply by 9 January 2015, and that the matter be referred back to the Judge on or after 12 January.

Objections
On 7 January 2015 BW agreed that the LPA should be revoked but that he should be appointed jointly with a panel deputy.  He stated that when P went into the residential home he believed it was in P’s best interests to sell the property and intended to take professional advice on whether to sell or convert the property into flats to obtain a better return.  He stated that MD disagreed and thought it better to keep the property and that he would move in and pay full market rent.  BW could see the benefit and that the income could pay the care fees rather than using the capital.

On 7 January 2015 MD stated that he did not want to be involved in expensive litigation but did not want the expense of a panel deputy and supported BW being the sole attorney, if the court felt that he could not continue as the attorney.  MD stated that the primary care of P fell on him which took a toll and although he didn’t keep receipts he paid for things in cash from her drawings in a separate wallet.

The OPG responded stating that the Barclays account into which the rent and P’s pension went was in BW’s name, he failed to transfer it into ID’s name and therefore the bank were unable to freeze the account.  On 4 February 2015 the Council confirmed the outstanding fees were now £37,567.42 and therefore the OPG continues with its application.

BW responded again stating that he knew nothing of the wallet MD talks about, and that he was unaware of these withdrawals when preparing the account for the OPG.  He stated that MD has also been involved in the finances and that he had no reason to question MD as P was still controlling her affairs.

At the hearing the OPG’s concerns were the property, the bank accounts and the outstanding care fees.  

The respondents appeared in person stating that the property was worth £350,000 and MD stated that he spent £80,000 of his own money renovating the upstairs flat. They were waiting for an NHS Continuing Healthcare assessment and if positive then they will pay for P’s care fees.

The Law
Section 22 of the Act describes the circumstances in which a court can revoke an LPA. If the court finds that the attorney has acted in a way that contravenes or would contravene their authority, or it is not, or would not be, in P’s best interest the court can direct that the instrument purporting to be a LPA is not to be registered, or if P lacks capacity to do so, can revoke the instrument or LPA (section 22(4)).

Decision
The court accepted the Court of Protection Visitor’s assessment of P in that she lacked capacity to;

• instruct the attorneys to provide an account;
  
• direct the attorneys to make decisions on her behalf regarding her finances; and
  
• revoke the LPA.
  

The court found that once again the failure to pay care fees and a failure to provide a personal allowance were "symptomatic of more serious irregularities in the management of an older persons’ finances".  The court was satisfied that BW and MD had behaved in a way that contravened their authority and not in P’s best interests. The court therefore revoked the LPA and appointed a penal deputy to act solely in relation to P’s property and affairs.
 
Discussion
This case is another demonstration of concerns regarding unpaid care fees and a failure to pay a personal allowance leading to more serious irregularities. The court found that the serious irregularities in this case were:

• a property belonging to P, which MD claims to have spent £80,000 of his own money renovating the upstairs flat;
  
• co-mingling of MD’s funds with insurance monies paid out on behalf of P following flood damage to the property;
  
• Barclays bank account in BW’s name, where P’s pensions and rent from the downstairs flat was paid, but not the upstairs flat;
  
• unaccounted for sums of £34,540.61.
  

It highlights that where attorneys are appointed jointly they should act jointly rather than allowing one attorney to have a free rein, as they will be held jointly liable for any loss and may end up solely liable if the other has no means to meet the loss.

The court was concerned, and simply did not believe BW’s explanation of why P’s money was paid into an account in BW’s name. It highlights the importance of ensuring that bank accounts are held in the name of P.

Read the full text of the judgment on Bailii