The Public Guardian v CS & PL [2015] EWCOP 30

An application by The Public Guardian for an order to revoke the lasting power of attorney (‘LPA’) for property and financial affairs and directing him to cancel its registration.

There were two attorneys - the son and daughter of EL appointed to act jointly in relation to said decisions about selling EL’s home and jointly and severally for everything else.

EL also signed an LPA for health and welfare in which she appointed her son and daughter to act jointly in relation to decisions about where she should live and jointly and severally for everything else.

This case highlights the difference between an application to revoke an LPA and one to revoke an EPA.

Background
EL is aged 91 years and in 2009 she was diagnosed as having vascular dementia. Since April 2011 she had lived in a residential care home in Bournemouth. In April 2010 EL signed an LPA for property and affairs and also for health and welfare appointing her son and daughter as attorneys. The daughter, CS, who is 66, is now retired having formerly worked in local government and the son, PL, 56, is a dental surgeon.

Both LPA’s were registered by the Office of the Public Guardian on 12 July 2010.

EL’s assets included a property she inherited from her parents in Athens and the net proceeds of sale from the property in Bournemouth circa £300,000. Her net income was about £1,000 a month and the care fees £2,400 a month (+ personal allowance of £25 per week). The rent from the Greek property was €200 a month is paid on account with the Alpha bank in Athens.

Unfortunately the two attorneys, although siblings, disagreed as to who  should control their mother’s finances and also the best care option for her. Since 2012 both made complaints about the other’s conduct as an attorney to the OPG. This led to an application in December 2012 by PL for a court order revoking the LPA for property and financial affairs and appointing him as his mother’s sole deputy. This was opposed by CS. At a hearing on 22 August 2013 the attorneys agreed a “schedule of agreed responsibilities” – in essence providing for better communication between the attorneys, sharing of information and importantly to seek mediation in respect of finances and or EL’s residents and care. A mediator was to be agreed between them and in default of agreement nominated by the court. The costs of the mediator will be borne equally between PL and CS and mediation was to take place no later than 30 October 2013.

A further hearing took place on 12 November 2013. However on 21 November 2014 the Public Guardian applied for an order:

• revoking and cancelling the registered LPA for property and affairs and 
• an order directing that a member of the panel of deputies be invited to make the application to manage EL’s  property and affairs and to investigate and to report as to the past management of EL’s affairs and “be empowered to take such steps as are necessary to restore her estate to its correct level” . 

The statement in support highlighted a number of discrepancies in terms of withdrawals from the Greek bank account with payments to both CS and PL totalling £42,478.94. A report by a Court of Protection visitor highlighted that all control had been taken by PL and did not involve the sister CS – this was in relation to her care home needs and he was repeatedly pushing for her to be moved to a specialist dementia home in spite of evidence showing that it was not necessary. The Court of Protection visitor noted that CS, according to the care home manager, was very supportive, visiting her mother three or four times a week and that CS is very happy with the care provided by the home.

PL opposed the application, asserting that ‘EL’s monies were completely secure as both joint attorneys are closely monitoring them (and each other) and nothing can be paid for except in EL’s interests. Appointing a deputy would just incur extra costs to EL and be of no added welfare benefit to her’. PL suggested that if the court were to revoke the LPA then he should be appointed as sole deputy with an independent deputy to oversee his activities. CS consented to the application by the Public Guardian.

Decision
This case is an almost exact replica as that in Re ED [2015] EWCOP 26 save that ED concerned an enduring power of attorney as opposed to an LPA. Applying the Mental Capacity Act 2005 section 22 (as opposed to schedule for paragraph 16 (G) in respect of an enduring power of attorney) the judge in the present case found clear evidence that the continuing hostility between the two attorneys was impeding the proper administration of EL’s estate and for that reason CS and PL are unsuitable to be her attorneys. Furthermore the court was satisfied that neither attorney could be trusted to act in the manner and the purposes for which the LPA was intended. The court noted that mediation had tried and failed despite the “schedule of agreed responsibilities” which have been drawn up following previous hearings. The court was also satisfied that they had contravened their authority by making gifts to themselves from their mother’s funds which was far in excess of the limited authority confirmed under section 12 MCA.

The court revoked the LPA and invited a panel deputy to be appointed as EL’s deputy for property and affairs.

Discussion
The court considered the difference between revoking an enduring power of attorney (schedule for paragraph 16 (G) MCA 2005) as opposed to revoking an LPA which is governed by section 22 of the MCA 2005.

Section 22 is much narrower and more focused than the “unsuitability” test in schedule for paragraph 16 (G).

Note that for the court to revoke an LPA, the court has to be satisfied that P lacks capacity to revoke the attorney herself whereas this is not a requirement under the EPA legislation.

Note also that whilst EL had executed on the same day an LPA appointing both CS and PL as attorneys for both property affairs and health and welfare, in the end it was only the property affairs LPA which was revoked despite court’s findings in relation to the behaviour of CS and PL.

Read the full text of the judgment on Bailii