Re SH [2016] EWCOP 2

​Application by the Public Guardian for the revocation of a LPA for property and affairs registered on 23 September 2008 and for a LPA for personal welfare registered on 26th of January 2009. This was on the basis that the sole attorney, P’s youngest son Ray, has behaved in a manner that is incompatible with P’s welfare in that he had been neglectful of his mother and similarly there was financial neglect in relation to the LPA for property and affairs.

Background
P executed valid LPA’s for property and affairs and personal welfare in which she appointed her youngest son Ray to be the sole attorney, and these had been registered in 2008 and 2009 respectively. In July 2008, some two months before the LPA for property and affairs was registered with the OPG, P made a will in which she left her entire estate to Ray and appointed him as sole executor, with specific provision should Ray pre-decease P. In August 2008 P was diagnosed with dementia and sadly P’s condition has declined significantly both mentally and physically from that date. 

The OPG had had previous complaints in relation to the attorney’s conduct, on each occasion the OPG having been notified by P’s eldest son Karl. A court of protection visitor visited P in February 2015 and confirmed that P had severe dementia and lacked capacity to revoke the LPA’s. At that time the concerns recorded by the OPG involved the attorney only visiting P once a year and delegating the functions of attorney to his niece, Fatima, without recompense as he had promised. The niece, Fatima, provided a witness statement in which she sought to become the attorney in place of Ray or in place of Waltham Forest Council (who declined so to act due to lack of resources and complexity). Fatima also asked the court to review the Will made in 2008 as she believed P lacked capacity at that stage. Karl also raised concerns about the will and also a trust in relation to the property and claimed that the donor’s signature of the LPAs were false and it was likely at that time that she already had dementia.

Ray subsequently contacted the OPG stating that he was content to be removed as attorney. Fatima was also seeking to be appointed as deputy in relation to property and affairs as well as for health and welfare.
The OPG had no objection to Fatima being appointed as deputy to manage property and affairs as well health and welfare if the court considered it necessary (referring to the judgement of Baker J in G v E [2010] EWCOP 2512 at paras 55-64).

Decision
In relation to the appointment of a deputy for property and affairs the court reiterated the judgement in Re RP [2016] EWCOP 1 (paras 29 to 35) that the court has discretion and has traditionally preferred to appoint a relative or friend provided it is satisfied that it is in P’s best interests to do so, rather than to appoint a complete stranger. The court was satisfied that P lacks capacity to revoke the LPAs and that Ray had behaved in a way that contravened his authority or was not in P’s best interests. The court considered it would not be in P’s best interests to appoint a professional deputy given that the assets were of minimal value and a professional deputy would expect to be remunerated for his or her services – Waltham Forest Council would have been entitled to charge an annual management fee not exceeding 3% of her assets. The court therefore appointed Fatima to be P’s deputy for property and affairs.

In relation to health and welfare court considered the relevant sections of the Act and paragraph 8.38 of the Mental Capacity Act 2005 Code of Practice and 8.39 together with paragraph 27 and 61 of G v E. The court concluded that Ray  had behaved in a way that contravened his authority and was not in P’s best interests - he  had been thoroughly neglectful of P. However, the court could see no obvious need for Fatima to be appointed as a personal welfare deputy – routine decisions concerning P’s day to day care could be made by Fatima as her carer, decisions as to medical treatment could be made by healthcare professionals who would also consult Fatima and P’s three sons and if there was a disagreement an application could be made to the Court of Protection. The court therefore revoked the LPA for health and welfare and did not appoint a personal welfare deputy to replace the attorney.

Discussion
Aside from this case of being yet another example of certain family members seemingly failing their loved ones, this case reminds practitioners that an incapacitated person does not always have to have a deputy appointed for them particularly in relation to health and personal welfare matters. In this judgment practitioners are reminded of the relevant parts of the Code of Practice as well as the seminal judgement of Baker J in G v E.

​Read the full text of the judgment on Bailii