BN, Re

This is an application under rule 89 of the Court of Protection Rules 2007 for me to reconsider an order I made on the papers.

The purpose of rule 89 and the way in which it operates were described by Her Honour Judge Hazel Marshall QC in Re S and S (Protected Persons) [2008] COPLR Con Vol 1074, at paragraph 61:

“Such a reconsideration is not an appeal. The processes in the Court of Protection are intended to give the court wide flexibility to reach a decision quickly, conveniently and cost effectively where it can, whilst still preserving a proper opportunity for those affected by its orders to have their views taken into account in full argument if necessary. To that end, on receiving the application, the court can make a decision on the papers, or direct a full hearing, or make any order as to how the application can best be dealt with. This will often lead to a speedy decision made solely on paper which everyone is content to accept, but any party still has the right to ask for a reconsideration.”

Because this is a case in which the issues include whether “a person should be restrained from acting as an attorney” and whether “an appointment should be revoked,” I am required by the practice guidance, Transparency in the Court of Protection: Publication of Judgments, [2014] COPLR 78, to allow this judgment to be published in anonymised form.

BN was born in Battersea in 1926 and has lived in south London all her life.

She used to be a cleaner at Peter Jones, the department store in Sloane Square.

Her husband, who was a German pastry-cook, died in 2004.

She has two daughters:

CN has two children:

On 26 March 2013 BN executed a Lasting Power of Attorney (‘LPA’) for property and financial affairs, and an LPA for health and welfare, in which she appointed her daughter, SH, and her granddaughter, GN, jointly and severally to be her attorneys.

She named her brother and her cousin (though not her daughter, CN, or her grandson RN) as persons who were to be notified of any application to register the LPAs and, thereby, entitled to object to the registration, if necessary.

The LPAs were drawn up by Gibson Young Solicitors, of 60 St Johns Road, Battersea, London SW11, and the certificate of capacity was provided by BN’s GP, Dr Jonathan Wharram, of the Queenstown Road Medical Practice.

The LPAs were registered by the Office of the Public Guardian on 4 August 2013.

About four months later, on 2 December 2013, CN applied to the court for an order that the LPAs be revoked and a panel deputy appointed because the attorneys were unsuitable to be the donor’s attorneys.

BN and her attorneys, SH and GN, objected to the application. They claimed that BN still had capacity to make decisions regarding the LPAs and, therefore, the court had no jurisdiction to consider the matter.

On 14 March 2014 District Judge Coffey made an order requiring each side to file and serve evidence by a certain date and directed that the matter was to be referred back to a judge on or after 17 June 2014.

The file was passed to me on 9 July 2014 and, even though I was satisfied with the evidence of capacity filed by the respondents, for the avoidance of doubt, I decided to commission a report from a Court of Protection Special Visitor.

A Special Visitor, Dr Leonard Fagin, saw BN on 1 August 2014 and his report of the visit gives a flavour of the family dynamics:

“BN started off by saying that she has not seen her daughter CN for ages. She said that she had agreed to carry out a LPA because she wanted her daughter SH and her granddaughter GN to look after her affairs following advice they received from Social Services when BN was to all intents and purposes was locked out of her own property when she went into hospital for an episode of pneumonia. ‘I wanted to protect my property.’ She said that she had written a will and made SH and GN her beneficiaries on her death, and purposefully excluded her other daughter.

She continued to speak about her daughter CN. ‘When the children were small, she would go out and come in late. I was working at Peter Jones. When I asked her to look after her children, she nearly strangled me. The children witnessed it, and the police were called, and they took GN. CN always wants her own way. She wants to do what she wants to do. Her children are from different fathers. GN’s father got killed in a car crash. RN’s father had said to me that he was frightened of her because he was attacked by her. She attacked my husband, as well, after an argument. She does not talk to her own daughter.’

She said that when CN failed to look after RN, she had agreed to take care of him and RN moved into her property. She said that RN’s mother, CN, never looked after him. When she went into hospital, RN was living with BN in her property at the time. She said that later she found out that many of her belongings, her antiques, jewellery and furniture especially, had gone missing and she suspected that her daughter CN had stolen them. ‘They were stealing all my things. CN has a place of her own in [the same street in Clapham as BN’s property]. I could not return to my own property.’ These comments were partly expressed by BN spontaneously, and partly prompted by her daughter SH, despite my exhortations for SH not to intervene at that stage.”

Dr Fagin eventually managed to interview BN on her own and he answered the questions I had asked him as follows:

“Does BN have the capacity to manage her property and financial affairs generally?

BN is unable to manage her property and affairs due to her physical infirmity and her short-term memory problems. She is entirely dependent on her daughter SH and her granddaughter GN in this regard. She accepts and trusts the care they provide, and is happy to hand over responsibility to them to manage her property and affairs as well as to look after her in her everyday needs and to help her with her physical and medical problems.

Does BN have the capacity to object to the application made by her daughter CN for the appointment of a panel deputy?

BN has capacity to object to the application of her daughter CN, justifying it on the basis of a poor relationship existing between them. She has made it clear she wishes her daughter SH and granddaughter GN to act as her attorneys.

Does BN have the capacity to conduct and participate in these proceedings without the need for the court to appoint a litigation friend to act on her behalf?

BN does not have the capacity to conduct and participate in court proceedings without a litigation friend due to her limited memory span affecting her short-term memory.

Does BN have the capacity to revoke the LPA, if she wishes to?

BN does have the capacity to revoke an LPA but she does not wish to do so with her present LPA.”

Dr Fagin concluded his report with the following summary of BN’s views and opinions:

“BN was able to express a clear opinion of who she wanted to look after her property and affairs, and look after her health and welfare (SH and GN). She was also able to clearly indicate who she did not wish to hand over that responsibility to (CN or RN). She clearly understood what was implied by an LPA and expressed a wish to retain it in its present form. In my questions she showed she had capacity to understand and retain for a sufficient time information given to her about the LPA in order to arrive at a decision after weighing up the consequences, and communicate this decision to me. She made it clear that she was not under the influence of others when she arrived at her decisions to execute an LPA or to retain it as it currently stands.”

On 3 November 2014 I made an order on the papers. As it was an open-and-shut case, I did not consider there was any point in wasting the parties’ time and money by summoning them to an attended hearing.

In the order I:

On 17 November 2014 CN filed an application notice, in which she said, “I am making a request to the court to have the order reconsidered at an attended hearing.” She set out the following grounds on which she was seeking a reconsideration:

“Unsuitability of the attorneys, SH and GN. SH is not a trustworthy person with money. She was financially abusing her mother-in-law. She also has a drink problem. GN depleted my mother of all her savings.”

On 31 December 2014 I made an order listing the matter for an attended hearing.

As she is in receipt of Income Support, CN was exempted from having to pay both the application fee of £400 in respect of her original application, and the hearing fee of £500.

The hearing duly took place on Tuesday 24 February 2015 and was attended by:

I regret to say that the hearing degenerated into a slanging match between CN and her sister and daughter. Voices were raised and tears were shed as either side trawled through decades of family history describing any incident that could possibly discredit the other. Fortunately, there was no need for me to embark upon a fact-finding exercise, because none of these incidents had the slightest bearing on the issue I was required to determine.

I confirm my decision of 3 November 2014 for the following reasons.

Subsections (3) and (4) of section 22 of the Mental Capacity Act 2005 provide that the court cannot revoke an LPA unless it is satisfied that:

BN does not lack capacity to revoke the LPAs and, indeed, she has no wish to revoke them, so the court is powerless to intervene.

In any event, CN failed to produce any evidence that the attorneys had behaved, or are behaving, or propose to behave in a way that contravenes their authority or is not in BN’s best interests. Everything she referred to was in the past, and mostly in the distant past, years before the LPAs were created.

My order of 3 November 2014 required the respondents’ costs to be assessed on the standard basis and paid by CN, and I propose to make the same order in respect of the costs of the hearing on 24 February 2015.

Some people insist on having their day in court, and some even hanker for a showdown, but ultimately someone has to pay for an attended hearing, and the general rule in property and affairs proceedings is that the costs are paid by the person to whom the proceedings relate, in this case BN: Court of Protection Rules 2007, rule 156

However, rule 159 allows the court to depart from the general rule, if it is justified by the circumstances, including the conduct of the parties and whether or not a party has been successful.

CN acted in bad faith, was motivated by spite, and was unsuccessful. BN responded to the application by taking advice from her solicitors, who sensibly narrowed the matter down to a single issue. It would be unjust to expect BN to pay the legal costs she had to incur in order to resist such an unmeritorious application.