The Public Guardian v SR v NC [2015] EWCOP 32

This case considers an application by the Office of the Public Guardian (‘OPG’) under section 22(4)(b) 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 an order directing that Hampshire County Council be invited to make an application for appointment of deputy for P’s property and affairs.

The Facts
P is a 77 year old woman who lives in a residential care home.

P’s was married but her husband died in 2004. P has a son, NC, who is 54 years old and a daughter SR who is 49 years old.

On 12th June 2009 P executed a LPA for property and affairs appointing NC and SR jointly and severally to be her attorneys. A solicitor witnessed her signature and certified that P had capacity to create a LPA.

An application was made almost immediately to the OPG to register the LPA: this was registered on 24th September 2009.

On 28th October 2011 P, through different solicitors, made a will leaving 95% of her estate to SR and the remaining 5% to NC. In March 2013 SR placed P’s house up for sale, instructing another different firm of solicitors.

NC became suspicious of his sister’s dealings of P’s affairs and made an application to the Land Registry to register a restriction on the house, which was duly done on 22nd April 2013.

Concerns
The OPG’s concerns were:

• On 1st May 2014 it had come to the OPG’s attention that SR had spent a significant amount of P’s money in the sum of £451,513 on adaptions to her own property (£220,799 cash withdrawals), going away on frequent holidays (£8,993); and bank transfers of £176,755;
  
• There were unpaid care fees of £3,668;
  
• After writing to the attorneys, NC replied stating that it was SR who was managing P’s affairs and that he had not been involved;
  
• The Court Visitor visited P on 4th June 2014 and concluded that P did not have capacity to revoke the LPA;
  
• The house was on the market in the sum of £369,950.

Objections
NC did not agree with the order that the OPG was seeking and he wished to be the sole attorney of P’s affairs, and if that was not acceptable then his daughters could fulfill the role. At the hearing NC admitted he made a serious error allowing SR to be named on P’s bank account and that the relationship had broken down in 2011/2012. When NC was informed by the bank that P’s account had very little money left he anticipated the sale of the house and therefore placed the restriction on it.  

SR filed an acknowledgement of service that was in effect blank. At the hearing SR confirmed that she supported the OPG’s application and apologized for her misconduct and stated that she had been suffering from depression for a number of years for which she was taking medication. SR disagreed with NC’s proposal stating that he was more interested in P’s money than her well-being.

The OPG stated that NC had not made any serious attempt to take on his role as attorney, although did enter the restriction. The OPG was also concerned regarding the fraught relationship between NC and SR. 

Hampshire council confirmed it was willing to act as P’s deputy. It confirmed at the hearing that although there had been regular payments the arrears now stood at £7,900.

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)).  The court also referred to the approach taken in Re J [2011] COPLR Con Vol 716, paragraph 75 where Her Honour Judge Hazel Marshall QC stated:

“In my judgment, the key … lies in considering the matter in stages.  First, one must identify the allegedly offending behaviour or prospective behaviour.  Secondly, one looks at all the circumstances and context and decides whether, taking everything into account, it can be fairly characterized as such.  Finally, one must decide whether, taking everything into account … it also gives good reason to take the very serious step of revoking the LPA.”

Decision
The court accepted the Court Visitor’s findings that P lacked the capacity to revoke the LPA.

The court found, unsurprisingly, that SR behaved in a way that contravened her authority.

The court found that NC had not behaved or proposed to behave in a way that contravened his authority, or is not in P’s best interests. Therefore the court did not revoke NC’s appointment.  

Discussion
The court in this case reviewed the Law Commission papers (Mental Incapacity (Law Com No 231) published in 1995, paragraphs 7.51 and 7.58 for guidance as to the rationale behind why the Act is worded in the way it is. The court emphasised that where possible the court should respect P’s wishes as expressed in her LPA and that this was a factor of ‘magnetic importance’.  

The court was concerned regarding NC’s indecisiveness in relation to restoring P’s assets prior to SR’s misappropriation of P’s funds. NC did not want SR to be homeless, nor did he want the police to be involved, and that he would sort P’s affairs out when his daughters finished their A levels in the summer. The court found that this was understandable and showed sensitivity towards SR’s situation. Hampshire stated that they would investigate and look into the matter and may consider approaching the police although SR confirmed that she had been interviewed by the Police and they did not intend to bring charges.

This case is in contrast to earlier decisions made by the court in Re ID [2015] EWCOP 19, where one attorney abused his position and the other claimed that he had left the management to his brother and had no reason to doubt his brother.  The difference however is that first, in Re ID, she had appointed the attorneys jointly, rather than jointly and severally as is in this case. The attorneys in Re ID should have acted jointly rather than let one have free rein and they were both liable for the loss of ID’s estate.  Secondly, in Re ID,  the court did not believe the story that one of the brothers had nothing to do with the management when he had in fact opened an account in his sole name into which ID’s pension and rental income were paid. 

Although the OPG was concerned regarding the relationship between NC and SR the court found that there was ‘no sense of the intense animosity that was evident in other cases’ (such as was in Re ED [2015] EWCOP 26 and Re EL [2015] EWCOP 30).

Although Hampshire was good value for money and experienced the court found that it was in P’s best interests for the LPA to remain in force with NC.

Read the full text of the judgment on Bailii