Re GW [2015] EWCOP 9

This case considers an application under section 22(4)(b) of the Mental Capacity Act 2005 to revoke and cancel the Lasting Power of Attorney ("LPA") made by GW in relation to property and affairs as the attorney behaved in a way that was outside his authority and not in the Patient’s ("P”) best interests; and an order directing the local authority to make an application to appoint a deputy to manage GW’s property and affairs.

The Facts
The Patient (“P”) is an 80 year old man who lives in a nursing home in Milton Keynes.  P’s wife died in 2001. P has two children, a son BW who is 47 years and a daughter AW who is 42 years.

P has advanced Alzheimer’s dementia.

On 2nd July 2010 P executed an LPA for property and affairs, and an LPA for Health and Welfare to BW and AW to be the replacement attorney.

An application was made to the Office of the Public Guardian ("OPG") to register the LPA: this was registered on 28th September 2010.

Concerns
In May 2014 concerns were raised with the OPG that:

• There were unpaid nursing fees of £68,895;
  
• There was a risk that the nursing home was going to serve notice;
  
• P was not receiving any personal allowance from BW;
  
• Milton Keynes Council had registered a caution in respect of P’s property;
  
• On 2nd June 2014 the OPG had written to BW asking for an account since 2010;
  
• On 3rd June 2014 BW visited P for the first time since December 2011, brought him clothes and toiletries and paid £200 towards his personal allowance;
  
• On 3rd June 2014 the OPG was contacted by BW’s wife stating that he was unable to respond to their request as he was ‘stressed’;
  
• The OPG attempted to contact BW by telephone 6 times;
  
• P’s state pension had been dormant since 25th March 2012;
  
• On 6th June 2014 a Court of Protection Visitor visited P and concluded that he did not have capacity to revoke or suspend the LPA;
  
• On 11th June 2014 Milton Keynes Council confirmed it was willing to act as deputy; and
  
• On 8th September 2014 the council informed the OPG that £75,000 had been paid towards P’s care fees.
  

Objections
BW objected to the application. He stated that he did not know about the investigation and therefore his views had not been taken into account.  He stated that he had been in touch with the council and informed them that the nursing fees could only be paid once the house was sold and therefore would take some time due to the state the property was in and the lack of funds to renovate it to a standard where it could be sold.  BW used his own money to prepare the house for sale. The property was sold in July 2014 and on the morning of completion P’s debts were paid.

On 25th November 2014 Milton Keynes Council wrote to the court stating that it believed that a panel deputy should be invited to act as P’s deputy for property and affairs.  It stated that now the property had been sold it did not think it was the appropriate body to manage the capital released by the sale.

On 30th December 2014 the OPG sought permission to amend its application seeking the court to invite a member of the panel of deputies to make an application to act as P’s deputy.  

BW did not attend nor was he represented at the hearing.

The Law
The Law relating to the revocation of 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 found that BW’s conduct had been a ‘catalogue of failures’.

Besides the Court of Protection General Visitor ‘s assessment of P, the court obtained a report from an Independent Mental Capacity Advocate on 27th August 2014 who stated that P was very confused and could not tell them about BW, not even his name.

The court found that P lacked capacity and that BW had acted in contravention of his authority and revoked the LPA.  

Discussion
The court did not accept BW’s assertions that the failings were beyond his control and found that the failings were entirely in his control.  He failed to pay the fees and provide a personal allowance and the court stated that these are ‘symptomatic of more serious irregularities in the management of an older person’s finances’.  The court found that he failed to see P for 30 months and failed to engage with the various agencies; and at the time of the hearing BW had still failed to provide the OPG with an account.  The court found that BW’s credibility was an issue and the court did not believe his account that he knew nothing of the investigation or that BW posted P’s bank accounts to the OPG.  The court neither believed, without authentic documentation and a very detailed explanation, BW’s claim for £10,000 for various bills. 

The court stated that failing to provide the OPG with an account would in itself warrant the removal of attorney.

This case highlights the importance of keeping account, liaising with various agencies and providing the OPG with an account and being involved in any investigation.

Read the full text of the judgment on BAILII