Public Guardian v H [2015] EWCOP 37

Revoking an enduring power of attorney (EPA) on the grounds of unsuitability.

The different criteria for the court revoking an EPA to that of revoking a lasting power of attorney (LPA). The LPA section 22 MCA is narrower and more focused. The court may only revoke an LPA if:

• (a) the donor lacks the capacity to revoke it, and
  
• (b) the attorney has behaved, or is behaving, or proposes to behave in a way that contravenes his authority or is not in the donor’s best interests.

With an EPA the court considers “unsuitability” and “all the circumstances”.

Additionally attorneys acting under an EPA must comply with the fiduciary  duties prescribed in paragraph 7.58- 7.68 of the Mental Capacity 2005 Code of Practice whereas an attorney acting under an LPA must not only comply with these fiduciary duties but also must:

• (a) act in accordance with provisions of the Mental Capacity Act and in particular sections 1 (the principles) and 4 (best interest) MCA 2005 section 9(4)(a); and
  
• (b) have regard to the Mental Capacity Act Code of Practice in a wider sense (MCA 2005, section 42(4)(a).
  

The duties of deputies to consult (see MCA 2005 section 4(4)(7)).

Background
P aged 74 signed an EPA appointing her husband (fourth) to be her attorney with general authority to act on her behalf in relation to all property and affairs.  In 2012 P became incapacitated – she was an alcoholic who collapsed and was unconscious for five days and never regained capacity to manage her property and financial affairs. 

The EPA was registered by the OPG on 12 March 2013.

P had a daughter D who lives in Spain and a son from a previous marriage. 

Since February 2014 P lived in a nursing home, the cost of which is fully funded by NHS Continuing Healthcare. 

P has a sister, S, who lives near her and visits two or three times a week. 

H, her present husband, is aged 79, and returned to their home in Spain where he formed a relationship with MQ, a 42-year-old illegal immigrant whom he admitted he had been infatuated with, had purchased a property for her in her own name for €100,000 but claimed in an initial witness statement the relationship was over as she had taken money of his and broken promises. He claimed that if he had said in an email mention of a civil partnership with MQ this was merely because she needed a passport. Without a passport she was severely inconvenienced living in Spain. H insisted that she had known marriage would not happen during P’s lifetime as H remains married to P.

The OPG applied to the Court of Protection for the revocation of the Enduring Power of Attorney and for an order directing the Public Guardian to cancel registration of the EPA made by P in accordance with schedule 4 paragraph 16(4)( g) and sub-paragraph (5) MCA 2005. The Public Guardian also invited the court to order that a member of the panel of deputies be appointed as property affairs deputy. In the evidence submitted on behalf of the OPG it set out H’s asserted detrimental behaviour in respect of P’s property and that on 17 March 2014 H had made a power of attorney in Spain in which he appointed his son and daughter from his first marriage and MQ to be his attorneys. P and H had owned a number of properties in Spain.

P’s sister S consented to the OPG’s application but said rather than appoint a panel deputy she wished to be considered for appointment as P’s deputy jointly and severally with her niece D, the daughter of P.  H in response opposed the application by the OPG and proposed that he and P’s sister S each share responsibility and in particular S take responsibility for P’s accounts in England. 

The witness statement on behalf of the OPG recorded H’s deleterious behaviour concerning P’s accounts, recording that:

• H had loaned £7,000 from P on the basis it would not inconvenience her in any way and that if she had mental capacity she would have agreed to the loan;
  
• H was still in a relationship with MQ and had purchased the property for her;
  
• H confirmed he had contravened his duties as attorney for P by using her money to pay off his own debts, these debts being caused by his relationship with MQ. 

The witness statement recorded that a large number of decisions still had to be made regarding the sale and although H had removed MQ as his Spanish attorney, the Public Guardian was concerned that MQ may influence H’s decision regarding what to do with proceeds of sale of the properties. The Public Guardian supported the application made by S and D to become P’s jointly and severally appointed deputies (one being based in Spain (S) and one in England (D)) and that that would ensure that P’s assets were managed in her best interests.

Key issue 
At paragraph 35 the court considered that even though there was “an absence of an express requirement in either the Mental Capacity Act or the Code of Practice for an attorney acting under EPA to act in the Donor’s best interests, any attorney acting under an EPA who has contravened his authority or has behaved, or is proposing to behave, in a way that is not in the donor's best interests is potentially 'unsuitable', although the court needs to have regard to all the circumstances, and to consider 'the bigger picture', before it can finally determine whether the attorney is unsuitable to be the donor's attorney.”

Decision
The court applied the relevant law namely paragraph 16(4)(g) and 16(5) of schedule 4 of the MCA 2005 noting in particular paragraph 16(4) which states that:

“the court must direct the Public Guardian to cancel the registration of an instrument registered under paragraph 13 in any of the following circumstances –

(g) on being satisfied that, having regard to all the circumstances and in particular the attorney’s relationship to or connection with the donor, the attorney is unsuitable to be the donor’s attorney”.

Paragraph 16(5) provides that:

“if the court directs the Public Guardian to cancel registration of an instrument of being satisfied of the matters specified in sub-paragraph (4)(f) or (g) it must by order revoke the power created by the instrument”.

The court considered the authority of Mr Justice Patten (as he then was) in Re F [2004] 3 ALL ER 277 at page 284F being the current law in relation to “unsuitability “ of attorneys particularly concerning sibling or relative hostility:

"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 impede the proper administration of the estate or will cause significant distress to the donor which would be avoided by the appointment of a [deputy]."

The court revoked the EPA and made a separate order which appointed S and D jointly and severally to be P’s deputies for property and affairs.

Discussion
This is yet another case highlighting unmeritorious if not downright dishonest behaviour of a family member dealing with monies and property belonging to an incapacitated person. This case is interesting because it highlights the differences clearly between EPA’s and LPA’s particularly concerning the revocation of the appointments. It reaffirms the law in relation to “unsuitability” and may assist those who are considering making an application for revocation of either an EPA or an LPA or indeed opposing any application.

Read the full text of the judgment on Bailii