Re AH [2016] EWCOP 9

​This case involved an application by the Public Guardian for the court to revoke a Lasting Power of Attorney for property and financial affairs under section 22(4)(b) of the Mental Capacity Act 2005.

The case was before Senior Judge Lush

The facts
At the time of the hearing, Alma was 95, had dementia and required full support with all aspects of her personal care and daily living needs, of which she had no understanding. 

Alma lived in a nursing home from 16 March 2010. On 11 December 2010 she executed a LPA for property and financial affairs, in which she appointed her niece’s husband, Colin, to be her sole attorney. The LPA was registered by the Office of the Public Guardian on 13 April 2011.

A number of concerns were raised about Colin’s performance of his duties. He had not been paying the care home fees, with a debt said to be just under £100,000, putting the placement at risk. He generally failed to engage with the nursing home and infrequently visited. An unaccounted £29,489.97 was spent from Alma’s account and no accounts or bank statements from the time the LPA was registered were produced. Another property was bought in Alma’s name for £60,000 two months after the registration of the LPA and Alma appeared on the electoral register as living at Colin’s address after her admission to the nursing home. Personal allowance payments to Alma amounted to less than £10 a month and she was not even afforded modest luxuries. Colin continued to have a mixed joint bank account with Alma upon his appointment, from which there was some concerning expenditure.

Law
Under section 22(3)(b) and section 22(4) of the MCA, the Court may revoke the lasting power of attorney if the donor lacks capacity to do so, and this applies if a donee has behaved or is behaving in a way that contravenes his authority or is not in the donor’s best interests.

Breach of the standards set out in the MCA Code of Practice can justify removal from the role of attorney under paragraph 7.51 of the Code.

Decision
The court was satisfied that Alma’s attorney behaved in a way that contravened his authority and was not in Alma’s best interests. The court revoked the LPA, being satisfied that Alma lacked capacity to do so.

Discussion
It was submitted by the Public Guardian that Colin had breached his duties and responsibilities, described in Chapter 7 of the Code, as follows:

• He breached his duty of care, skill and diligence to ensure that Alma’s fees (and thereafter) debts were paid on time, or at all, and failed to ensure that her personal allowance was maintained on a consistent basis contrary to paragraph 7.59 of the Code;
• He breached his duty to keep an account of the transactions carried out on Alma’s behalf contrary to paragraph 7.67 of the Code;
• He breached his duty of good faith as he had not acted with honesty and integrity contrary to paragraph 7.63 of the Code; 
• He breached his duty to keep Alma’s money separate from his contrary to paragraph 7.68 of the Code.

Furthermore it was submitted that he had behaved in a way that was not in her best interests in breach of section 4 of the MCA. 

The court found that Colin “failed to treat her with any semblance of dignity, empathy or respect.”

Read the full text of the case on Bailii