The Public Guardian v JD v GB [2015] EWCOP 26

This case considers an application by the Office of Public Guardian (‘OPG’) for the revocation of an Enduring Power of Attorney (‘EPA’) and for a member of the panel of deputies to make an application to become P’s deputy for her property and affairs.  The OPG wished for witness statements regarding the facts around the creation of the EPA.

The Facts
The Patient (“P”) is a 97 year old women who as recently as 10th January 2015 moved to live in a residential home that specializes in dementia care.  

P has 2 daughters JD, who is 61 years and a retired GP, and GB who is 58 years and is a radiographer.  The two daughters do not get on and detest each other.

On 25th September 2007 P executed an EPA appointing both daughters jointly to be her attorneys for all her property and affairs.  Both JD and GB executed Part C respectively with JD executing hers in the presence of a friend on 30th September 2007, the last day it was possible to create an EPA, as on 1st October 2007 the Mental Capacity Act 2005 (the Act’) came into force replacing the EPA with lasting power of attorneys (‘LPA’).
 
At a later date JD downloaded the new page 2 and changed the attorneys from jointly to ‘joint and several’.

In 2013 JD applied to the OPG to have the EPA registered.  On 6th September 2013 GB phoned the OPG to enquire about the process and found out that JD had changed the EPA from joint, to joint and several.  GB made representations to the OPG; nevertheless the EPA was registered on 9th September 2013.

Concerns
The OPGs concerns were:

• The disagreements between JD and GB regarding the circumstances of the execution of the EPA;
  
• It was difficult to believe JD with her professionalism could misunderstand the plain language of the EPA and did not contact a solicitor or the OPG before signing. 
  
• As the document was incorrectly amended after execution the deed presented to the OPG was not the same deed as P created and has no legal effect and cannot be rescued.

Objections
JD stated that she had realised that the EPA had been completed wrongly and that due to her difficult relationship with GB she did not discuss this but hoped that she would come to the same conclusion.  JD stated that she did discuss it with P, along with P’s sister Norma Ball, who is now deceased.

The Law
The court referred to Paragraph 4(7) of Schedule 4 to the Act which states:

“A person who, in an application for registration, makes a statement which he knows to be false in a material particular is guilty of an offence and is liable-
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both.”

The court also referred to section 16(4) of Schedule 4 of the Act:

"The court must direct the Public Guardian to cancel the registration of an instrument registered under paragraph 13 in any of the following circumstances:
(g) on being satisfied that, having regard to all the circumstances and in particular the attorney’s relationship to or connection with the donor, the attorney is unsuitable to be the donor’s attorney.”

The court referred to the several previous cases which found that hostility would not render the attorney unsuitable if it did not impact on the proper administration P’s affairs or challenge the integrity or competence of the attorney (see: Re W (Power of Attorney) [1999] 2 FLR 1163, upheld in the Court of Appeal in Re W (Enduring Power of Attorney) [2001] 2 WLR 957; Re E (Enduring Powers of Attorney) [2003] 3 WLR 1974; and in Re F [2004] 3 ALL ER 277)

Decision
The court found that JD knew that when she completed the form (EP2PG) which she altered saying that the attorneys had been appointed to act jointly and severally she knew that the statement was false.

The court determined that any attorney who dishonestly attempts to undermine the registration procedure by making false statements is unsuitable to be the P’s attorney.

The court found that due to the acrimony between both sisters it was unsuitable for either of them to be suitable as attorney or deputy for P’s property and affairs.

The court revoked the EPA and directed the OPG to cancel the registration.  It appointed a panel deputy as it was essential having regard to all the circumstances of the case.  

Discussion
The court discussed the reasons why criminal sanctions where included in the legislation concerning EPA (Enduring Powers of attorney Act 1985) to prevent the acts of dishonesty by the unregistered attorney to undermine the registration procedure.  The Court of Protection does not have a criminal jurisdiction as such, and decisions to prosecute attorneys who provide false information lies with the Crown Prosecution Service, although doubted a prosecution in this case was really necessary in the public interest and would probably cause P distress, which would definitely not be in her best interests.

As P had a house to sell and decisions needed to be made the court concluded that the hostility between the sisters would result in either one of them wilfully frustrating any actions or decisions taken and nothing would be achieved.  

This case demonstrates the absolute need for honesty and integrity on behalf of attorneys.  It is essential that notwithstanding acrimonious relations within a family it is essential to lodge documents that are not knowingly false, and communicate if you are to be an attorney, otherwise there is a possibility of a criminal conviction. 

Read the full judgment on Bailii