ED, Re

This is an application by the Public Guardian to revoke an Enduring Power of Attorney (‘EPA’). Because of the nature of the application, I am required by the practice guidance on Transparency in the Court of Protection: Publication of Judgments, [2014] COPLR 78, to allow this judgment to be published.

ED was born on 11 April 1918 and has vascular dementia.

She used to live in Marlow, Buckinghamshire, but since 10 January 2015 she has lived in a residential unit in Stoke Mandeville, which provides specialised dementia care.

Her husband died in 1984.

She has two daughters:

ED’s daughters don’t see eye to eye. In fact, they detest each other. According to JD, the two of them have been in the same room together on five occasions during the last five years, and on each occasion GB has refused point blank either to speak to her or even acknowledge her presence. The only communication between them is by email, and this is usually rancorous in tone.

On 25 September 2007 ED executed an EPA in which she appointed her two daughters jointly to be her attorneys, with general authority to act on her behalf in relation to all her property and affairs. Her signature was witnessed by a friend of the family.

On 27 September 2007 GB executed Part C of the EPA and her signature was witnessed by a work colleague. She then posted the document to her sister.

JD executed Part C of the prescribed form in the presence of a friend on 30 September 2007, which was the last day on which it was possible to create an EPA. On 1 October 2007 the Mental Capacity Act 2005 came into force, and EPAs were replaced by Lasting Powers of Attorney.

JD sent GB a photocopy of the executed EPA and the original document was put away in a drawer, to be brought out only when the attorneys had reason to believe that ED was, or was becoming, incapable by reason of mental disorder of managing and administering her property and affairs.

At some stage, and it doesn’t really matter when, JD downloaded a new page 2 from the internet, and changed the attorneys’ appointment from ‘joint’ to ‘joint and several.’ JD says that this happened during the spring or summer of 2008. GB believes it occurred much later, in 2013, immediately before JD applied to the Office of the Public Guardian (‘OPG’) to register the EPA.

On 6 September 2013 GB phoned the OPG to enquire about the progress of JD’s application to register the instrument and discovered for the first time that the nature of the appointment had been changed from ‘joint’ to ‘joint and several’. She made vociferous representations to the OPG but, nevertheless, the EPA was registered on 9 September 2013.

On 5 December 2014 the Public Guardian applied to the court for the following order:

On 16 December 2014 I made an order listing the matter for an attended hearing on 18 February 2015, and set out a timetable for filing and serving evidence and submissions. Following a request from JD for additional time, the date of the hearing was postponed to 19 March 2015.

On 12 January 2015 GB filed a witness statement, in which she described her version of events and on 10 February 2015 JD filed a witness statement, in which she said as follows about changing the type of appointment:

“In the following months the realisation came that the appointment type had been wrongly entered on the EPA. I did not discuss this with my sister at the time due to our difficult relationship but hoped that she would come to this conclusion herself before the EPA needed to be registered. It seems that mum did not discuss it with her either. Some time during the spring/summer of 2008 mum and I discussed this with her sister Norma Ball and I reprinted the front pages from the internet. We changed the second page of the EPA to reflect mum’s wishes of joint and several attorneys, since we all agreed this to be in her best long term interests especially given the contact between my sister and me. We were aware that the option to draw up a new EPA had then passed. On this occasion I filled in the detail on page 2 as requested by mum, as she often asked me to do since she was finding writing increasingly difficult probably due to a small TIA (mini stroke) affecting the fine controlling of her right/dominant arm, diagnosed in 2007. It did not occur to any of us that this amendment should be dated and signed – either through naivety or ignorance but certainly not through malevolence. With the benefit of hindsight it is easy to see the error of our ways and that we should probably have drawn up an LPA at that point. This document was them effectively “put in a drawer” and forgotten about until 2013.”

On 11 March 2015 Laura Knight of the OPG made a witness statement, in which she said as follows:

“On reviewing the respondents’ witness statements, the answers to the questions posed by the court are:

(a)

Afull description of the circumstances in which the EPA was created:

The respondents disagree about whether they and ED were present at the execution of the EPA or what discussions had taken place about it with their mother. Both agree that ED was a frugal person and did not want a solicitor to be involved in the process.

They differ too on why the choice of appointment as joint was made – GB saying it was ED’s active choice to ensure that both daughters acted together; JD saying that this was based on her mistaken understanding of the term, presumably a mistake made by ED.

The Public Guardian’s position is that the guidance on the EPA forms at the time was reasonably clear and in simple language. ED is no longer able to confirm how much understanding of the two forms of appointment she had. Of the two statements it is more difficult to believe that a professional person with the responsibilities of JD would misunderstand the difference in appointment types when it seemed so important, and would not think to contact a solicitor, the OPG or some other source of legal information before signing.

(b)

Details of the date on which page 2 was amended from ‘jointly’ to ‘jointly and severally’

GB makes no comment on this, on the basis that the EPA was not within her control after it was signed by the parties. In paragraph 9 of her witness statement JD refers to a conversation with her aunt Norma Ball (now deceased) at which it was agreed that the deed should be amended.

Again, while this seems plausible, it is alarming to see an attempt by reasonably educated people at amending an important legal document without any witnessing being attempted or legal advice being taken, and which, if JD is to be believed, only compounded the first error.

In any event, the position of the Public Guardian remains the same as previously – that, as the document was incorrectly amended after execution the deed presented to the Public Guardian was not the same deed as the donor created and has no legal effect. The court is therefore invited to revoke the registration of the EPA since it cannot be ‘rescued’ by either means suggested by the respondents.

(c)

Who madethe amendment on page 2 from jointly to jointly and severally and why they made the amendment?

JD confirms that she made the amendment but with the agreement of her mother.

(d)

Who witnessed the amendment made on page 2 from jointly to jointly and severally?

Unfortunately Norma Ball (ED’s sister) is now deceased and no other witness has been proposed to corroborate JD’s recollection of these events.”

Each respondent filed a further witness statement on 17 March 2015.

The hearing took place on Thursday 19 March 2015 and was attended by:

JD said that her mother still owns her house in Marlow, which is worth between £550,000 and £600,000. In addition, she has some stocks and shares and other savings amounting to approximately £100,000.

ED’s income is roughly £1,200 a month and her principal outgoings are her care fees, which are currently £940 a week. She may eventually become eligible for NHS Continuing Health Care, but she is not eligible at present.

GB expressed her annoyance that JD had placed their mother in a care home without consulting her. Although GB conceded that the care home is very pleasant, her mother now lives twice as far away from her as she used to. The journey to Stoke Mandeville takes GB between 90 minutes and two hours, whereas previously, when ED lived in her own home in Marlow, the journey only took 35 to 40 minutes.

JD said that she had looked at eight different care homes and took ED to see several of them. JD has visited her mother every day, whereas GB visits only once a week or once a fortnight and her children never visit of their own volition.

In addition to any other offence she may have committed, when JD applied to register the EPA, she completed a form EP2PG, in which she stated that the attorneys had been appointed to act jointly and severally. She knew that this statement was false.

Paragraph 4(7) of Schedule 4 to the Mental Capacity Act 2005 provides that:

“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.”

These provisions more or less replicate those in section 4(7) of the Enduring Powers of Attorney Act 1985, though the 1985 Act provided a maximum sentence of six months’ imprisonment on summary conviction.

The reason for including criminal sanctions in the EPA legislation was discussed by the Law Commission in its report, The Incapacitated Principal (Law Com No 122, Cmnd 8977), which was published in July 1983. Paragraph 4.101 of the report stated that:

“So far as criminal sanctions are concerned, clearly the existing law would cover acts of dishonesty committed by the attorney. We consider, however, that criminal sanctions should attach to dishonest attempts by an unregistered attorney to undermine the registration procedure. Accordingly we recommend that anyone who makes a statement in his registration application that he knows to be false in a material particular should be guilty of an offence.”

The Court of Protection has no criminal jurisdiction as such. Any decision to prosecute JD would be a matter for the Crown Prosecution Service, and any charge brought under paragraph 4(7) of Schedule 4 to the Mental Capacity Act 2005 would be for either the Magistrates’ Court or the Crown Court to determine.

Although there may be sufficient evidence to ensure a realistic prospect of conviction, it has never been the rule in this country that every criminal offence should automatically be prosecuted, and I doubt whether a prosecution in this case is really necessary in the public interest. It would probably cause ED significant distress, which would definitely not be in her best interests.

Paragraph 16(4) of Schedule 4 to the Mental Capacity Act 2005 provides that:

“The court must direct the Public Guardian to cancel the registration of an instrument registered under paragraph 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.”

In my judgment, any attorney who dishonestly attempts to undermine the registration procedure by making a statement she knows to be false is unsuitable to be the donor’s attorney. JD is no exception and, notwithstanding the natural love and affection between them and the undoubted support she has provided to her mother in recent years, I find her unsuitable to be the donor’s attorney.

In addition, I consider that JD and GB are both unsuitable to be their mother’s attorneys, and also unsuitable to be her deputies for property and affairs, because of the intense acrimony between them.

In Re W (Power of Attorney) [1999] 2 FLR 1163, Jules Sher QC, sitting as a deputy judge of the Chancery Division of the High Court held that:

“The second ground of unsuitability is the hostility between the three children. The master considered that that fact alone rendered any one of them unsuitable to be Mrs W’s attorney. In my judgment such hostility may well have such consequences but it all depends on the circumstances. For example, had the estate of Mrs W been complex and had it required strategic decisions in relation to its administration, one would expect the attorney to have had to consult and work with her siblings in relation to the administration. In such circumstances the evident hostility between them would impact adversely on the stewardship of the attorney, no matter who was at fault in creating the hostility in the first place. …

That is not to say that this court approves of the strident tones in which Mrs X’s correspondence is couched. It is earnestly to be hoped that after all this wasteful litigation she can find it in herself to conduct the family’s affairs in a more congenial and co-operative manner.”

Mr Sher’s decision was subsequently upheld by the Court of Appeal, in Re W(Enduring Power of Attorney) [2001] 2 WLR 957, and was applied by Mrs Justice Arden, as she then was, in Re E (Enduring Powers of Attorney) [2000] 3 WLR 1974, and Mr Justice Patten, as he then was, in Re F [2004] 3 All ER 277. In Re F, at page 284f, Mr Justice Patten said:

“It seems to me that to remove a chosen attorney because of hostility from a sibling or other relative, in the absence of any effective challenge to his competence or integrity, should require clear evidence either that the continuing hostility will impede the proper administration of the estate or will cause significant distress to the donor which would be avoided by the appointment of a receiver.”

In this case there are strategic decisions to be made, such as the sale of the house in Marlow, and the obvious hostility between the two sisters would almost certainly have a negative impact on the administration of ED’s estate. Each would wilfully try to frustrate any action or decision initiated by the other and nothing would ever be achieved.

The appointment of someone independent, such as a panel deputy, is not merely desirable but essential and, having regard to all the circumstances, including ED’s advanced age, her anticipated life expectancy and the extent of her assets, it is unlikely that the additional costs incurred will be disproportionate.

Accordingly, I revoke the EPA pursuant to paragraph 16(4)(g) of Schedule 4 to the Mental Capacity Act 2005 and direct the Public Guardian to cancel its registration. I shall also appoint a panel deputy to make any decisions on behalf of ED which she is incapable of making for herself in relation to her property and financial affairs.