DT [2015] EWCOP 10

This case considers an application by the Public Guardian to revoke and cancel the registration of an Enduring Power of Attorney (‘EPA’).   The application sought:

• a declaration as to P’s capacity to make decisions concerning his financial affairs;
  
• an order under schedule 4, paragraph 16(2)(b)(ii) of the Mental Capacity Act (‘the Act’) ordering the attorneys to provide full detailed accounts with supported documentation from 26 September 2011 to date of the order;
  
• if the attorneys fail to provide an account an order under schedule 4, paragraph 16(4)(g) and (5) directing the Public Guardian to revoke the EPA and to cancel the registration of the EPA;
  
• an order directing Suffolk County Council be invited to make an application for appointment as deputy.
  

The Facts
The Patient (“P”) is a 72 year old man who lives in a care home. 

P had a history of anxiety and depression and retired on medical grounds when he was 44 years old, although he undertook various self-employed ventures. P has dementia caused by a combination of vascular disease, a brain injury he sustained in 2006, and chronic alcoholism.

P’s wife left him in 2006 on the advice of social services when P was in a particularly destructive phase.

They have three sons, 49 (‘IT’), 46 (‘PT’) and 43 (‘MT’) years old respectively.

In July 2007 P executed an EPA appointing his sons jointly and severally in relation to his property and affairs.  The EPA was registered by the Office of Public Guardian (‘OPG’) on 26 September 2011.

Concerns
On 14 June 2013 Suffolk County Council contacted the Office of the Public Guardian (‘OPG’) stating:

• There were unpaid nursing fees of £19,624;
  
• IT responds to all attempts of contact by Suffolk County Council by asking questions and underpaying the fees by £100 a week;
  
• P and the wife jointly own the property which is rented at £550 per month and that the rent is being paid to the wife;
  

Suffolk County Council confirmed that it was willing to act as P’s deputy for property and affairs.

A Court of Protection General Visitor visited P on 10 August 2013. When asked about the EPA, P confirmed that his sons were jointly responsible and that he was happy with the arrangement.

As there was uncertainty regarding P’s capacity concerning specific decisions relating to his property and affairs the Public Guardian obtained a report from a Court of Protection Special Visitor to examine P.  This was a difficult meeting and P shouted on several occasions that he wanted his sons to have a ‘power of attorney’ but that he did not want his wife to be involved or have a power of attorney.  Although a difficult meeting P wished to relay that he wanted his sons to manage his finances.  The report stated that although no capacity assessment could be undertaken, P suffered from dementia which was due to several factors, the brain scan showed damage to the frontal lobe which is involved in behaviour and aggression and it was likely that P’s impulsive aggressive behaviour was caused by the damage to the frontal lobe. P still had the ability to state who should have a power of attorney and that it should be his sons.  

Amongst other things the court ordered that the attorneys to account to the OPG.

Objections
The attorneys all objected to the application relying on the Special Visitor’s report that P was happy with the current arrangement.  IT also applied for an extension to provide an account to the OPG.

MT filed a statement explaining that they were balancing the needs of both parents because if P did not need to be in residential care his parents would still be together in the house and both would be provided for.  MT considered that P’s views should be "paramount".

The OPG responded stating that the sons visit P infrequently and only one telephones to see how he is. Suffolk Safeguarding raised concerns as P’s wife asked him to sign "pieces of paper".  P complains that his wife is taking his money and social services had asked the attorneys on numerous occasions to provide P with details of how is money is being spent but that they have failed to do so.  The OPG conclude that whilst it is understandable that the attorneys are balancing the family needs this is in conflict with their duty under the Act; that the attorneys have failed in their duties by not keeping accurate records and allowing P’s care home fees to accrue to £68,977.40; and failing to provide him with a personal allowance.

Suffolk CC objected to the OPG’s application requesting that a panel deputy be appointed as the contentious history and complexity of the case are such that the Finance Team lack the relevant expertise. It explained that when the social worker accepted the invitation from the OPG she was unaware that the Council did not accept every invitation.

The OPG was represented at the hearing.  All three attorneys attended with their mother and a family friend.  The attorneys stated that they tried to agree a reasonable fee to pay the care home whilst also looking after their mother; the house had been sold and contracts were due to be exchanged and that they wished to pay off a reasonable sum of the fees but the Council will not talk to them; they wished to move P back to Essex as they are not happy with the care but that it is six hour round trip hence the lack of visits.

P was to be re-assessed for NHS Continuing Healthcare and if the assessment is positive the financial problems will diminish.

The Law
Paragraph 16(4) of Schedule 4 of the Act states the court "must" direct the Public Guardian to cancel the registration if it is satisfied "….having regard to all the circumstances and in particular the attorney’s relationship to or connection with the donor, the attorney is unsuitable to the donor’s attorney."

If the court does direct the Public Guardian to cancel the registration it must revoke the instrument giving that power by an order (Paragraph 16(5)).

The case law was commented on in Re F [2004] 3 ALL ER 277, page 284f:

"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."

In dealing with applications for revoking an EPA the court does not have to be satisfied that P does not have the capacity to revoke, unlike the test for revoking a Lasting Power of attorney (‘LPA’) (see section 22 of the Act, subsections (3) and (4)). It merely has to be satisfied that having regard to all the circumstances and in particular the attorney’s relationship to, or connection with, P, the attorney is unsuitable to be the attorney.

Further, Schedule 4 paragraph 3(2) allows the attorneys to act in relation to himself and to any other person if the donor might be expected to provide for his or the other’s persons needs, and he may do whatever the donor might be expected to do to meet those needs.

Decision
The principle criticism was that the attorneys were applying P’s funds for their mother who would otherwise have been reliant on means-tested benefits. There was no evidence of dishonesty, although the attorneys had failed to produce satisfactory accounts. There was however a question why the wife received all the rent from the joint property. The court found that the attorneys had acted within their authority as provided in Schedule 4, paragraph 3(2) of the Act.

There had been no hostility between the siblings so the issue for the court was whether there had been an effective challenge to the attorneys’ competence or integrity. The court did not find anything irrational, impracticable or irresponsible in P’s wish for his sons to continue as his attorneys, and it was not satisfied that the attorneys’ conduct had a "sufficient detrimental effect" on P or his finances to justify "overriding his wishes".

The application was dismissed.

Discussion
The case sets out the difference in the test for the court to revoke an EPA and a Lasting Power of Attorney.

Although the OPG had asked the Special Visitor if P lacked capacity to revoke the EPA, and the Visitor confirmed that he did, and although this was unnecessary for deciding whether to revoke the EPA, the court could not ignore it. The one certainty in this case was P’s satisfaction with his sons' management of his finances and has no desire to revoke it. The court considered that if it revoked the EPA, the anger expressed by P when being questioned concerning his sons' management would cause P significant distress and that cannot be in his best interests.

This case also demonstrates circumstances where P’s wishes and feelings are highly relevant in balancing the factors to establish what is in P’s best interest

The court concluded that the costs of a panel deputy, even if it were necessary (although it was not in this case) was disproportionate and would drain P’s limited resources. 

Read the full text of the judgment on Bailii