The Public Guardian v MO & SDRM [2015] EWCOP 27

This case considers an application by the Office of the Public Guardian (‘OPG’) under section 22(4) of the Mental Capacity Act 2005 (‘ the Act’) to revoke a Lasting Power of Attorney (‘LPA’) in relation to property and affairs as the attorneys behaved in a way that was outside their authority and not in the Patient’s (‘P') best interests; and to direct a panel deputy be appointed as P’s deputy for property and affairs.

The Facts
P is a 70 year old woman who has lived in a residential care home since 5th January 2013.  P owned her own property.

P’s was briefly married from 1960 to 1962 and has one daughter, MO.  MO suffers from fibromyalgia, pain all over the body; she has two sons, the elder is SDRM who is 27 years old.

On 8th March 2012 P executed a LPA for property and affairs appointing MO and SDRM jointly and severally to be her attorneys.

An application was made to the OPG to register the LPA: this was registered on 20th July 2012.

Concerns
The OPG’s concerns were:

• The local authority informed the OPG on 22nd November 2013 that P’s care home fees were in arrears in the sum of £9,739.85;
  
• The caller from the local authority stated that P’s bank accounts were overdrawn and that her bank accounts revealed expenditure that P would not require personally; e.g. supermarket payments of £1,978 and other retail payments of £9,591;
  
• The Court of Protection General Visitor visited P on 6th February 2014 and concluded that she had advanced Alzheimer’s disease and therefore lacks capacity to suspend or revoke the LPA;
  
• MO has failed in her duties and used P’s funds for her own benefit;
  
• The local authority were not prepared to act as deputy to manage P’s property and affairs;
  
• The Court Visitor alleged that in a conversation with MO, MO stated that she had paid some of P’s debts and mixed her own income with that of P.  MO stated she had sent money to her son and paid money into a Trust Fund for him.  MO was unable to tell the Court Visitor why the bank accounts were overdrawn;
  
• The Court Visitor stated that P needed clothing but MO seemed unable or unwilling to provide the most basic items.

Objections
MO denied making these comments to the Court Visitor.

MO claimed that she had a right to P’s home as it was handed down from her grandfather to ensure the family always had somewhere to live regardless of their circumstances.  P had lived with MO at her council property for one year and 3 months, but MO had given this up to move to P’s property to look after her as it was felt that this was in P’s best interest. 

MO was appalled at the allegations against her.  MO confirmed that SDRM had no dealings with it, that he just visited P and discussed with MO how P was.  MO was unable to give SDRM’s address as he had recently moved and had been staying at a friend’s house.

Despite the court orders MO had failed to provide the OPG with an account of her spending of P’s funds. The care fees were now £20,868.98 as MO had defaulted on the arrears plan.  MO had provided copies of utilities bills to prove she had taken over payments relating to P’s property.  P’s bank statements show that before she went to the care home, P paid the utility bills in full and were not shared with MO.  The OPG was standing by its application as MO had failed to provide an account to the OPG, continued to fail to pay the care home fees, the bank statements continue to be overdrawn, and the spending from P’s funds has not been for her benefit.

The OPG further stated that SDRM had not been involved nor contacted the OPG.

Although MO stated that she had filed her evidence neither the OPG nor the court received a copy until the hearing on 17th March 2015.  MO denied that she had defaulted on the payment plan; she had asked the local authority many times to provide a repayment plan but they had failed to do so.  MO stressed all that she had done for P and the stress it was all having on her and her family.

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 accepted the Court Visitor’s findings that P lacked the capacity to revoke the LPA.
The court found that MO had contravened her duties and behaved in a way that was not in P’s best interests.  
The court revoked the LPA and invited a panel deputy to act as P’s deputy for her property and affairs.

Discussion
This case demonstrates the restraint upon attorneys under an LPA and how they are expected to act. In this case the court found that MO had failed to reconsider her financial situation. Once P went to live in a care home she was no longer able to support MO and her family.  MO should have prioritized P’s financial needs with P’s own finances instead of spending it on herself and her family. 

The court preferred the evidence of the Court Visitor and the local authority as they had no reason to make up the evidence against MO.  

The court referred to MO’s statement as ramblings and found that it showed a person at ‘breaking point’, and clearly unable to cope. It was therefore in P’s best interests for her property and affairs to be managed by a panel deputy.

As SDRM did not check or balance what MO was doing with P’s finances and he had no permanent address, the court found it was not in P’s best interest for SDRM to act as the attorney.

It is so important that where an elderly relative has gone into a care home and you have accepted to act as an attorney, that you take care to monitor the spending and keep account of the expenditure you are making, ensuring that the spending is benefiting P. Even if you are an attorney that does not get involved too much, you still have a duty to ensure that the property and affairs are managed properly. Just because the elderly person has gone into a care home does not mean they no longer need their money to take care of them and provide them with money to meet their needs on a daily basis. In the event that there are concerns and the OPG investigates, you must provide them with all the details they request. Otherwise it is likely to result in an application to the court.

Read the full text of the judgment on Bailii