IMPORTANT NOTICE
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
MENTAL CAPACITY ACT 2005
First Avenue House
42-49 High Holborn,
London WC1V 6NP
Before :
Senior Judge Lush
Re GW
Between:
THE PUBLIC GUARDIAN | Applicant |
- and - | |
BW | Respondent |
Fatima Chandoo for the Public Guardian
The respondent did not attend and was not represented
Hearing date: 16 February 2015
JUDGMENT
Senior Judge Lush:
This is an application by the Public Guardian to revoke a Lasting Power of Attorney (‘LPA’) for property and financial affairs because the attorney has behaved in a way that contravenes his authority and is not in the donor’s best interests.
The facts
GW was born in 1935 and was formerly a diplomat.
He has advanced Alzheimer’s dementia and resides in a nursing home in Milton Keynes.
His wife died in 2001.
He has two children, both of whom live in Milton Keynes, namely:
a son, BW, who was born in 1968, and is a civil servant; and
a daughter, AW, who was born in 1972.
On 2 July 2010 GW executed an LPA for property and financial affairs and an LPA for health and welfare, in which he appointed his son to be the attorney and his daughter to be the replacement attorney.
The LPAs were registered by the Office of the Public Guardian (‘OPG’) on 28 September 2010.
The application
On 2 October 2014 the Public Guardian applied to the court for the following orders:
An order under section 22(4)(b) of the Mental Capacity Act 2005 for the revocation and cancellation of the registered LPA made by GW.
An order directing the local authority to make an application for appointment as deputy to manage GW’s property and financial affairs.
The application was accompanied by a witness statement made by Brenda Bond, an investigating officer with the OPG, who said that:
Concerns were raised in May 2014 regarding unpaid nursing home fees totalling £68,895.
There was a risk that the nursing home would serve an eviction notice on GW.
GW was not receiving any personal allowance from his son.
Milton Keynes Council had registered a caution in respect of GW’s property in Bletchley.
On 2 June 2014 the OPG wrote to BW asking for an account of his dealings since the LPA was registered in 2010.
On the following day, 3 June 2014, BW visited his father at the nursing home for the first time since GW had taken up residence there in December 2011, brought him some clothes and toiletries, and paid £200 towards his personal allowance.
On the same day, 3 June 2014, BW’s wife contacted the OPG and said that BW was unable to respond to the OPG’s letter as he was ‘currently stressed.’
The OPG attempted to contact BW by telephone six times - on 14, 14, 18, 21 and 29 July and 22 August - but received no response.
GW’S state pension had been dormant since 25 March 2012 because the Department for Work and Pensions was unable to establish his present whereabouts.
On 6 June 2014 a Court of Protection General Visitor, Mary Duncan, visited GW and concluded that he did not have capacity to revoke or suspend the LPA.
On 11 June 2014 Milton Keynes Council confirmed that it was willing to act as deputy.
On 8 September 2014 the Council informed the OPG that £75,000 had been paid towards GW’s outstanding care fees on 30 July 2014.
The attorney’s response
In a letter dated ‘September 2014’, which actually predated the Public Guardian’s application, but was not received by the court until 12 November 2014, BW said as follows:
“I received a letter from the Office of the Public Guardian on the 24th September 2014 in regards to the management of my father’s affairs; my father being Mr GW.
I would like to make it clear that I do not want to lose the power of attorney for my father’s affairs. I would also like to explain that I have carried out my duties and I knew nothing of this investigation until I received this letter so my opinions have not been considered and I have had no opportunity to express my views.
It is claimed that my father owed a large sum of money to MK Council for care home fees. This is actually correct. On numerous occasions I have been in contact with MK Council and the various residential and care homes explaining that my father had no money until his home was sold. I also explained that this may take a while due to the condition of the house. At no point has anybody said this would be an issue.
It took until July 2014 for me to sell his home, and I paid my father’s debts on the morning the sale was completed. The reason the sale took so long was because he has lived on his own since my mother died in 2001. My father was a very heavy smoker, and he was a serious compulsive hoarder. It was very hard to get the house maintained because he did not like people coming in. My father also really could not manage himself or the house on his own and in hindsight I think he should have gone into sheltered accommodation earlier. Thus the house fell into serious disrepair, was very dirty and most rooms were unenterable due to hoarding clutter. After that the house stood empty for many years and there was no money to renovate it.
I spent two years time (and my own money) emptying, cleaning and repairing the house in order to sell it. There was not even any water or heating. I dropped the price of the house more and more and eventually sold it, only to be told it was too cheap, and I could be in trouble for not securing the best deal for my father. So I did more work to it and sold it again.
My double garage is now full with my father’s belongings because I didn’t want to use his money for storage. Whilst working on my father’s house I purchased a car trailer using my money because it was costing me so much in skip hire. My father had no money.
My father also owes me £10,000 over the years to pay for anything from car tyres, car repairs to paying bills. I have never taken this money back because he needed it more than I do and I presumed would be returned to me in his will. On the subject of his will, I was asked to supply a copy of, to the best of my knowledge there doesn’t appear to be a proper one. I did find various hand written notes, but the only wills were for my grandparents. I did write and tell Brenda Bond. I also wrote and said that at the time I did not think he had a pension. My father worked mostly abroad as a diplomat, so did not pay tax in the UK, and I know he did not have a private pension. Since then, I have discovered a small pension with a company called JMR, which no longer exists, although I am now in touch with the company which took them over.
Another consideration to take into account is that I am married with five children, two with special needs, and I am a full time civil servant, so my time for house renovation has been restricted.
My sister AW has been able to visit my father much more than me because she does not have a family and she works a lot less hours than I do. Due to this, AW has always looked after my father’s immediate needs, such as pocket money, cigarettes and toiletries. I still don’t know why, but she suddenly stopped doing this – without telling me – and I was not aware that he had run out of pocket money. As soon as I was aware, I took £200 of my money and bought him new toiletries and a whole new wardrobe of clothes. Like the last time he moved, I cleaned, decorated and fully furnished his new flat and financed it myself. I was hoping to finance some work by selling some items which my grandfather had left. This was until I discovered my father had given nearly everything of value to charity shops, including my grandfather’s antique gold Rolex!
I am a little confused over a statement in the COP24, 10.7, where it states in paragraph 4.13 that “On the 8th September 2014 the local authority informed me a payment of £75,000 was received on 30th July 2014. The source of the fund is not known. The account is now in credit of £575.80.” This is strange because I spoke to the council immediately before and after the money went through. In the pack I have just received there is a receipt from MK Council, stating it was from GW’s son.
Also a while ago Brenda Bond sent me a pack with lots of questions. One of these questions was about my father’s bank account and asked for copies of statements. I contacted Nationwide and it took them nearly three weeks to supply them because they were going back so far. When I did get them, I sent them with the rest of the paperwork straight to Brenda Bond. Unfortunately, six weeks later my envelope I sent to Brenda was returned by Royal Mail because it was damaged and the address was not legible. I did not even open it. I put the old pack with the damaged envelope into a new one and posted it again. I did this to prove it was Royal Mail’s fault and not me being tardy. This is the last I heard about it.
I would like to conclude by saying I do not want to lose power of attorney. I know I have not been perfect, but I will endeavour to improve. I think it very unfair that this is being considered after I put in so much effort to sell the house, and everything is now in order. Please take into account most of the failings were beyond my control, and I do work full time and have quite a busy home life as well.”
Amendment of the application
On 25 November 2014 Milton Keynes Council wrote to the court stating:
“I am writing to notify the court that Milton Keynes Council … believes a panel deputy should be invited to act as the donor’s deputy for property and affairs. Milton Keynes Council had previously indicated that, as a last resort, given that GW had no capital other than his former home, we would be prepared to act as deputy, however it is understood that the property has since been sold and Milton Keynes Council does not consider it is the appropriate body to manage the capital released by the sale.”
On 30 December 2014 the OPG filed an application notice seeking the following order:
“The Public Guardian requests the court’s permission to amend his COP1 application dated 2 October 2014 at 5.2 to substitute: “The court to invite a member of the panel of deputies to make an application for his or her appointment to make decisions on behalf of GW in relation to his property and financial affairs”.”
In a witness statement accompanying the application, Brenda Bond said:
“On 14 November 2014 the Public Guardian received a copy of BW’s objection. BW stated he would like to remain as GW’s attorney. He claimed he was not aware of the investigation until he received a letter on 24 September 2014. …
BW also confirmed he received a letter from me requesting him to comply with the Public Guardian’s investigation by providing financial accounts. He stated he had posted bank statements but they were returned to him six weeks later by Royal Mail. He then resent the package to me. I can confirm to date the OPG has not received this.
On 25 November 2014, Milton Keynes Council informed the court that they would not be willing to manage GW’s financial affairs and thought a panel deputy should be invited.
The Public Guardian is not aware how GW’s property and financial affairs have been managed by BW due to BW’s failure to comply with requests for documentary evidence for the OPG’s investigation. From the objection letter received from BW, the Public Guardian cannot verify if BW was aware of the investigation as he denied it but later admitted to posting bank statements to the OPG for the investigation.
The Public Guardian wishes to pursue his application made on 2 October 2014 to revoke the Lasting Power of Attorney for property and affairs. The Public Guardian requests that in the best interests of GW a panel deputy is appointed.”
The hearing
The hearing took place on Monday 16 February 2015 and was attended by Fatima Chandoo and Gemma Hopper of the OPG.
Although BW was notified of the hearing by an order issued on 13 January 2015, he neither attended nor was represented.
The law relating to the revocation of an LPA
The Public Guardian’s application was for an order under section 22(4) of the Mental Capacity Act 2005 for the revocation and cancellation of the registration of the LPA.
Section 22 of the Mental Capacity Act 2005 describes the circumstances in which the Court of Protection may revoke an LPA. It refers to the donor of an LPA as ‘P’ and the attorney appointed by the donor as ‘the donee’.
Section 22(3)(b) states that:
“Subsection (4) applies if the court is satisfied -
(a) ….
(b) that the donee (or, if more than one, any of them) of a lasting power of attorney –
has behaved, or is behaving, in a way that contravenes his authority or is not in P’s best interests, or
proposes to behave in a way that would contravene his authority or would not be in P’s best interests.”
Section 22(4) provides that:
“The court may –
direct that an instrument purporting to create the lasting power of attorney is not to be registered, or
if P lacks capacity to do so, revoke the instrument or the lasting power of attorney.”
Decision
Until the OPG intervened, the attorney’s conduct had been a catalogue of failures.
He failed to pay his father’s nursing home fees, as a result of which his father was at risk of being evicted.
He failed to visit his father at the nursing home for some thirty months from December 2011 until 3 June 2014.
He failed to provide his father with a personal allowance.
He failed to engage with the various agencies involved in caring for his father.
He failed to provide Milton Keynes Council with details of GW’s financial circumstances so it could assess the extent to which he should be contributing towards his care fees; and
He failed to inform the Department for Work and Pensions of his father’s whereabouts, as a result of which GW’s state pension had been dormant for more than two years.
I cannot accept BW’s assertion that “most of the failings were beyond my control.” They were entirely within his control.
With almost unerring monotony in cases of this kind, a failure to pay care fees and a failure to provide a personal allowance are symptomatic of more serious irregularities in the management of an older person’s finances.
BW has still failed to provide the OPG with an account of his dealings, even though it was requested nearly nine months ago. This alone would warrant his removal as attorney.
His credibility is also an issue. He claimed that he knew nothing of the OPG’s investigation until he received its letter dated 24 September 2014.
Of course, he was aware of the investigation. On 3 June 2014, the day after the OPG had sent him a letter requiring him to account, his wife phoned the OPG to say that BW was “currently stressed and probably would not reply to the letter,” and on the same day, as if by pure coincidence, he decided to visit his father for the first time in two and a half years.
Nor do I believe the story that he had obtained his father’s Nationwide bank statements, and posted them to the OPG, but the envelope had been returned to him six weeks later damaged and undeliverable. He claims to have put the damaged envelope into a new one to prove that the delay was the Royal Mail’s fault rather than his, and posted it again. The OPG still has not received these statements.
Nor - without the production of authentic receipts and a very detailed explanation - would I venture to believe BW’s claim that “my father also owes me £10,000 over the years to pay for anything from car tyres, car repairs to paying bills.”
I appreciate that BW is married with five children, two of whom have special needs; that he works full-time as a civil servant; that the time he has to deal with his father’s affairs is very limited, and that he is currently stressed, but these are reasons for disclaiming the attorneyship rather than persisting in performing it inadequately.
As regards GW’s capacity to revoke the LPA, in her report dated 6 June 2014, Mary Duncan, the Court of Protection General Visitor, said that:
“The donor does not have the mental capacity to suspend or revoke the LPA. The donor is suffering from advanced Alzheimer’s disease. He is unable to respond meaningfully to any specific questions save sometimes to questions relating to specific day to day needs. When basic questions about his well-being were put, responses included the comments “You used to be so good” and “Things are climbing the walls”. There was no sign of any understanding when he was asked whether he knew who was managing his affairs. He was unable to discuss meaningfully or at all what an LPA was.”
There was also a report from an Independent Mental Capacity Advocate, dated 27 August 2014, in which the IMCA said: “I again visited [the nursing home] and this time spoke to GW. He was very confused and could not tell me about his son, either his name, whether he visited him, or whether he dealt with his finances.”
For the reasons stated, I am satisfied that BW has behaved in a way that contravenes his authority and is not in GW’s best interests and, as GW is incapable of revoking the LPA himself, I shall revoke it for him.