Re DWA [2015] EWCOP 72

The court on paper had made a revocation of a lasting power of attorney for property and affairs in respect of one of three attorneys on the basis that the Donor was incapable of revoking the appointment and the attorney had behaved in a way which contravened her authority and was not in the Donor’s best interests.
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An application was made for the court to reconsider this decision pursuant to rule 89 of the Court of Protection Rules 2007.

Background
The Donor aged 86 executed an LPA for property and affairs and health and welfare on 2 March 2012. She appointed all three of her children (two sons and a daughter) to be attorneys. In respect of the LPA for property and affairs she directed they were to act jointly in relation to decisions relating to sale of the house and jointly and severally for everything else. 

An application to register the LPA was made on the same day and they were registered on 25 May 2012. The Donor had mixed dementia and she resided in her own home until 7 December 2013 when she was admitted to residential care, fees for which are funded by NHS Continuing Healthcare.

On 13 March 2014 the  Public Guardian made an application for an  order under section 22 (b)  Mental Capacity Act 2005 for partial revocation and cancellation of the registration of the LPA but allowing the LPA to continue in respect of her two sons and for the  registration to be restricted to the Donor’s  two sons only. This was based on evidence produced by the investigations officer of the OPG which raised a number of serious concerns regarding the daughter including withdrawals of cash, excessive expenditure of food on the Donor’s debit card, setting up a monthly standing order payable to “myself” providing care for the Donor (all three attorneys provided care for their mother on a rota basis but the daughter was the only one who charged for her services). The daughter, when written to  by the investigations officer, provided no evidence of income or expenditure or its receipt for bank statements and over a period between May 2012 and January 2013 there were 39 cash withdrawals totalling £3,921. In addition the daughter was removing large sums each month from her mother’s accounts to meet “expenses”. The OPG investigating officer asserted that the daughter was in breach of her fiduciary duty not to self -deal, that she was not complying with the guidance in the Mental Capacity Act Code of Practice that a  decision should be made in the Donor’s best interests and accordingly sought an order from the court to remove the daughter leaving only the sons to act under the LPA in respect of property and financial affairs.

The two sons agreed with the application but the daughter opposed it on the basis that medical evidence submitted to the OPG concerning the Donor’s mental state not been taken into account and that the Donor had mental capacity and asked her to undertake financial transactions or asked her to undertake them on her behalf. She filed a witness statement and claimed that there was no evidence to support the assertions of the OPG.

A special visitors report was commissioned by the OPG, namely a psychiatrist who on 6 August 2014 concluded that the Donor was suffering from  severe  dementia and as such did not have capacity to make decisions in relation to the LPA either for property and financial affairs or for health and welfare.

At the hearing to reconsider whether the decision made on paper was correct, the daughter failed to attend and the OPG reasserted previous concerns about the daughter’s behaviour. The OPG made it plain that they had no issues about the daughter continuing to act as an attorney for health and welfare.

Decision 
The court considered in particular the Mental Capacity Act Code of Practice (the fiduciary duty in particular in relation  to lasting powers of attorney) as well as section 42(4) Mental Capacity Act 2005 and the ability of the court to revoke an LPA under section 22 of the Mental Capacity Act.

The court, having reviewed all the evidence filed, was satisfied that the daughter had breached her fiduciary duty, failed to account satisfactorily for transactions undertaken by her, contravened the duty to keep her money separate from the Donor’s and nothing which the daughter had said subsequently had caused the court to change its mind.

Discussion
Yet another decision which clearly reveals how some family members seem to consider that the Mental Capacity Act and the Code of Practice does not apply to them – that they can deal with a family members affairs and treat monies  as if they are their own. It may be a salutary lesson to those who are attorneys acting under an LPA that the court will not permit such activities to continue. It does of course mean that there has been an application to revoke an LPA – usually this is prompted by a complaint to the OPG of inappropriate behaviour by an attorney.

Read the full text of the judgment on Bailii