RM, Re

This is the Public Guardian’s application for:

Roy was born on 23 August 1925 and was formerly a radar engineer.

He and his wife used to live in Essex, but moved to Hampshire when he retired in 1985.

His wife died of cancer on 12 August 2015.

He has a son and a daughter, namely:

On 10 January 2014 Roy executed an LPA for property and financial affairs, in which he appointed his wife, son and daughter jointly and severally to be his attorneys.

Nicola Hawkins of Glanvilles Solicitors, Havant, Hampshire, witnessed his signature and was the certificate provider.

On 21 May 2014 Roy executed an LPA for health and welfare, in which he appointed his daughter, Sue, to be his sole attorney. Once again, Nicola Hawkins witnessed his signature and completed the certificate of capacity.

Roy’s wife made similar LPAs on the same two dates.

At the hearing on 27 April 2016 it emerged that the reason why there was a four-months’ delay in executing the LPAs for health and welfare was that Glanvilles had made a mistake in January 2014 by assuming that the donors required mirror-image LPAs appointing their spouse, son and daughter jointly and severally as the attorneys, as in their LPAs for property and financial affairs. However, the donors’ intention was to appoint Sue to be their sole attorney for health and welfare.

An application was made to the Office of the Public Guardian (‘OPG’) to register the LPAs and they were registered on 9 October 2014.

On 17 August 2015 – five days after Roy’s wife died - the OPG received a complaint about Sue’s conduct. It was alleged that she had been behaving in an irrational and uncontrolled manner, to such an extent that there were concerns about her own mental capacity.

On 19 August 2015 Sue raised concerns with the OPG about Roy’s carer. She claimed that the carer was feeding him with cold food and had no hygiene and food safety training.

The OPG opened a formal investigation and instructed a Court of Protection General Visitor to go and see both Roy and Sue separately.

The Visitor, Lynne Williamson, saw Roy on his own in his sitting room at 11.45 a.m. on 1 October 2015. In the report she wrote the following day, she said:

“I asked Roy if he knew what a Lasting Power of Attorney was and he said no. I explained it to him and then asked if he thought he had made a Lasting Power of Attorney. He said he could not remember. I told him he had made two LPAs, explaining the difference, and asked who he thought he would have appointed as attorney. He said, “my son, I expect”. I asked if he would have appointed his daughter and he said no. I then showed him both LPAs explaining who he had appointed. He shrugged his shoulders and said “At my age I don’t want all this. Is it necessary?”

In response to a standard question on the visit form, “Does the donor have the mental capacity to revoke or suspend the LPA?”, the Visitor answered:

“No. He has no idea what it is and, even when I told him, he did not retain the information. He has no memory of making the two LPAs. He is aware that his son comes and looks after some of his needs but he does not know what involvement his daughter has.”

The Visitor commented:

“So far as I can tell Philip is acting appropriately as finance and property attorney, although because of the attitude of his sister he is making decisions without involving her. The attorney for health and welfare is the daughter, Sue, and it will be seen from the separate report compiled by me at the meeting with her that I have grave concerns about her abilities.”

In the report of her meeting with Sue, the Visitor said as follows:

“I was instructed by the Public Guardian to visit the attorney Sue at her home address to establish the capacity of the attorney and to provide a general overview of the situation.

I wrote to Sue advising her of my intention to visit at 3pm on 1st October. I received two emails from her, copies of which are already with the OPG, and the meeting was moved to 3.30pm.

Sue invited me into the kitchen and asked me to sit opposite her at the table. I began by telling her that I had visited her father that morning on the instruction of the OPG to assess his capacity. I explained that the OPG could not become involved until the capacity of the donor had been established. I told her that in my opinion her father lacked capacity.

She became very agitated waving her arms around and running her hands through her hair. She said, “That’s it then. He has been written off.”

I tried to explain to her why I had reached my opinion but she would not let me talk. She questioned my ability to assess capacity and said, “I am very upset by what you have told me about my Dad.”

One of the emails she sent me had said that “if the OPG are going to state I am not a fit person to be an attorney, this will mean I cannot work any longer in my job. I need to know the OPG decision very soon so I can notify the Disclosure and Disbarring Service (DBS) immediately.” She referred again to this and said she would have to give up her job.

I told her that this was not the case because the DBS system relates to police convictions and cautions in relation to vulnerable persons and her role as attorney would not be recorded there. Sue was speaking over me and not listening to what I was saying and I put my hand up to try to get her to stop talking. She pushed her chair back and said she did not feel safe and she felt threatened. She then said “will you just tell me if you think I am lying.” When I said I would have no view on whether she was telling the truth or not, she said “good, I’ve passed.”

I tried to get information from the attorney about the circumstances surrounding her concerns for her father’s care, but getting her to stick to the subject in hand was near impossible. I was able to establish that the first care company, Bluebird Care, were put in by Health when Roy’s wife returned home for palliative care. I am not clear at what point Loga Care took over but, after her death, the CHC funding ceased and Roy became responsible for the full cost. Sue was insistent on talking about her mother’s care and telling me how her brother was never interested in his parents. “My brother wanted my dad in a nursing home. They are embarrassed by him.” She said “until mum died I dealt with it all.” She was very critical of her brother and in particular of his wife who she said was ‘unbelievable’ and who her mother never liked.

I asked Sue why she felt threatened by her brother and she said: “Because when my mum was alive he made wild accusations. When I was at mum’s he asked to speak to me on the phone. He said “you’re like a swan with a broken wing flapping around.” My parents had hardly seen him. Can’t remember a Xmas when he went there. Not seen them on their birthdays. Sends a card but not a present.”

I specifically asked her if she felt frightened for her safety. She said “yes, because of my sister in law. They treat me like a child. Not with respect. I find him rude and nasty.”

She said that her sister-in-law came to the house uninvited in the days just before her mother died. She told her, her mother was dying and that she needed to see her. Sue said she felt threatened by her sister-in-law and she said, “I love my house. I am small. I live on my own and I need to feel safe in my house.” She said she told her sister-in-law to leave and followed her down the drive. She said her sister-in-law assaulted her by shutting her car door on her. On the matter of her mother’s funeral, she said she did not feel she could go because her brother and his wife would be there.

I moved the subject on to how she was working with her brother as co-attorney and she said, “I’ve allowed him to do everything because he likes control. I won’t let him move the investments. I’ve just managed to put £300 back into the account from the previous care company.

Throughout my conversation with Sue she was extremely agitated and was often trembling with emotion. She was on her feet a lot, waving her arms around and shouting. I told her that in my opinion the property and finance LPA was unworkable because there appeared to be no way in which she could work jointly with her brother in best interests. She asked what would happen and I said it was possible that the judge of the Court of Protection would see deputyship as the best option for managing the donor’s affairs. She asked if the deputy would be her brother, and I said it was possible, but equally the judge could decide to involve an independent. She reacted quickly, saying it was offensive for me to say that she would not be considered, and I pointed out to her that was not what I had said. On the issue of the health and welfare LPA I told her that I had concerns about her willingness to work with the professionals involved in her father’s care. She would not agree she was at any way at fault, saying she had been denied access to her father’s care plan and the capacity assessment. Again she referred to [GP’s name], saying “he calls me abusive”. She said she wanted to talk only with the carer and her supervisor and did not want to include the manager of the agency.

It was by this time 5.30 and she was aware that I was trying to wind the meeting up. She started to shout “I feel like I’ve been put on trial.” She told me I had not given her enough time to put forward her case and she said, “I am sorry you don’t like me.” I told her I had no view either way. When I said that I did not feel I needed any more information and had enough to complete my report, she marched to the front door, gestured me through it, and slammed the door behind me.

Conclusion

It was clear to me from my meeting with Sue that she is a very emotional lady. She was obsessive about her brother and sister in law, returning again and again to their ‘harassment’ of her. She kept referring to her love for her parents and telling me that she was the one who cared about them and how her brother never cared. She blames them for all the problems of recent months and for making it impossible to be with her mother in her last days. I am not qualified to give a diagnosis of Sue’s mental condition, but I found her to be in a high state of agitation throughout, to be irrational and unwilling to accept information I gave her, and to be obsessive about her brother and his wife and the carer who was living with and supporting Roy.

In my opinion her continued involvement in her father’s financial affairs is not workable because of her poor relationship with her brother. I also have doubts about her ability to make decisions in best interest for her father in relation to his health and welfare. She does not accept that he lacks capacity and she is not working with the professionals, seeing conspiracies against her by the GP, the care agency and her brother.”

On 7 December 2015 the Public Guardian applied for the following order:

“The Public Guardian asks the court to request that Sue submit details of how she proposes to work with Philip in the management of the donor’s financial affairs. If Sue should fail to provide to the court a viable proposal, the court is asked to consider the partial revocation of the property and finance LPA made by the donor of 10 January 2014 and registered on 9 October 2014.

An order under section 22(4)(b) of the Mental Capacity Act 2005 for the revocation and cancellation of the registered health and welfare LPA made by the donor on 21 May 2014 and registered with the Public Guardian on 9 October 2015.”

The application was accompanied by a witness statement, dated 7 December 2015 and made by Eileen Lawrence, an investigations officer with the OPG.

Sue had, in fact, already come up with a proposal whereby she felt that she would be able to work with her brother. In a letter to Nicola Hawkins of Glanvilles dated 16 September 2015 she had suggested:

“Let’s go forward. As I say, I do not hate my brother. However, harassment is very unpleasant and it has turned into bullying, as he has labelled me to so many people. I believe that my brother wants to deal with all financial affairs, so this can be the agreement:-

(a)

Dad always to have at least £20 cash in his wallet, so he feels he has money to spend.

(b)

Dad keeps his bank card in his wallet and his cheque book is kept in the sideboard drawer so he knows where it is.

(c)

Dad to have all decisions fully discussed with him, giving him time and support to come to his own decisions.

(d)

As much as possible, dad is taken to the bank/building society for transactions, so he is included.

(e)

Any documents/forms that are to be submitted, I am sent a copy via [my solicitors] MacDonald Oates to agree before it is submitted.

(f)

Dad keeps his current account at [address of bank branch], where they know him.

(g)

All accounts are just in my dad’s name or they are jointly in my brother’s name, my name and dad’s name. We should all be able to sign on the accounts or just dad.

(h)

Nobody should be hired or asked to deal with dad’s affairs.

(i)

Any documents received to do with dad’s financial affairs should be copied and sent to MacDonald Oates. If they are repeated bills, for example for care or cleaning, they can just be paid. If arrangements are made to change regarding amounts paid, proposals should be sent to me first.

(j)

Any investments should only be put in accounts with Barclays Bank, HSBC, National Westminster, Halifax or Nationwide.

(k)

No gifts should be made and no trusts set up.

(l)

If dad chose to go into a home, as I think my brother thinks is appropriate, his home should not be sold, but let out. This letting process should fully involve us three.

(m)

Post about financial matters should all continue to be sent to dad’s address.

The Public Guardian did not think that these proposals would work because of the deep-rooted enmity between the two attorneys.

One of the exhibits attached to Eileen Lawrence’s witness statement was a note of a telephone conversation, in which she said:

“On 29 October 2015, I made a call to Sue to ask whether she was prepared to work with Philip in managing Roy’s financial affairs, or did she wish to relinquish her role as attorney. She explained that she does not wish to give up the LPA for property and finance and would continue to communicate with Philip via her solicitor. She explained that Philip writes to her solicitor who then forwards the correspondence to her by mail. She said that the system has been in place prior to the death of her mother.

Sue stated that she has not seen Roy since 18 September 2015 as she feels unwelcomed in the home by the carer, who, she says, reports everything back to Philip and his wife.”

On 11 December 2015 District Judge Mort made a directions order, in which, even though the Public Guardian had not expressly asked for the LPAs to be suspended, he decided to suspend both of the LPAs. He also set out the following timetable for filing and serving evidence:

On 31 December 2015 Sue filed an acknowledgment of service (COP5), in which she opposed the Public Guardian’s application. She said:

“Evidence to follow. I have been suffering very unpleasant harassment, which has had a cumulative, adverse impact on my everyday life and family members, causing me to be frightened and distressed. This harassment has come from my brother and sister-in-law. Before my mother died he had been telling my health professionals that I have severe mental health issues. People have just labelled me without even meeting me. I have a letter from my GP to state that I do not have mental health issues or have ever had them.”

On 5 January 2016 Philip filed an acknowledgment of service in which he consented to the application. He also attached a statement, which is set out in paragraph 30 below.

On 5 January 2015 the OPG wrote to the court saying there were no concerns about Philip and concluded the letter by stating that:

“Finally, the Public Guardian has been informed by Philip that the donor’s bank accounts have been suspended. The Public Guardian has not sought this as the Public Guardian holds the view that suspension of the donor’s accounts has detrimental implications for the donor in that his utility bills will not be paid.”

On 11 January 2016 Sue filed a COP9 seeking an extension of time in which to file her response, which was due to expire the following day, and on 20 January 2016 District Judge Mort made an order allowing her to produce her response by 9 February 2016.

On 6 February 2016 Sue filed a lengthy witness statement with 51 exhibits. On 14 April 2016 she filed a further witness statement taking the total number of exhibits to 67. These were some of them:

On 5 January 2016 Philip said:

“I have read the statement from the Office of the Public Guardian. I agree with their recommendations to the court that the joint LPA for financial affairs either be revoked or that Sue’s name is removed from it. They are also recommending that the sole LPA for H&W be revoked and a deputy appointed. I think that the decisions that will need to be made about father’s health need a dispassionate and professional approach and that this would be better coming from a court appointed deputy. I think Sue finds the responsibilities of holding the LPA for H&W for our father difficult. She has been in denial about our parents’ condition and she is now in denial of our father’s. He is scared stiff if he thinks he is alone for more than 5 minutes. He is also scared of the dark. I think being in denial is at the root of my sister’s problems with the health professionals, the carers and me and my wife.

I also think that Sue would have trouble managing our father’s financial affairs as the sums involved in providing father’s essential 7 day a week, 24 hour a day care are large. However I am willing to accept the court’s ruling on this. There are some practical problems. I support the carer with the weekly shopping, a trip on which I take my father, and I am owed money for this and other expenses for which I will need reimbursement. As an aside, we still need to sort out probate for my mother’s estate as my father is the first named executor with myself and Sue jointly named as second if my father cannot act.

I do not want to go into all the accusations, but as regards the charge of harassment, we have only seen Sue three times since just before our mother died. The first was when my wife. Nicola, drove to Sue’s house to tell her that mother was dying, and was told to get off her land and never return. We have complied fully with this request. The second was when Sue came to our parents’ house to visit Mother. We had been on the point of leaving (as requested so that Sue could visit when we were not in the house) but Sue was early and Nicola happened to be in the hall when she arrived. On seeing Nicola she screamed and ran away.

The third was when I went down to father’s house because the heating had failed. I met Sue at the front door by accident and said, “Hello, Sue, nice to see you. We need to talk”, as I had been asked to do so by [Roy’s GP]. Sue just ran away shaking to her car and drove off. Later she shouted at the carer that she should have told her that I was coming.

I am worried about Sue’s health because many of the people she has come in touch with have expressed their concern about her mental condition. Sue appears to be constantly tense and anxious, with a hair trigger. If she disagrees with something she starts screaming at people, stamps her feet in front of them, bites her knuckles and slams doors. The problem has now become so acute with the carer that she (the carer) starts trembling when she knows Sue is coming. I am not sure that Sue is aware of her own actions. I did make some enquiries to see if anything could be done to help Sue. However it appears that both I and Nicola are part of the problem.

When my mother died, my sister absented herself for about 8 weeks. We wrote to her to involve her in the funeral but she did not reply. She stated that she would have nothing more to do with things if I got involved. I had heard that she wanted to revoke her LPA for H&W. During this period I arranged mother’s funeral, arranged the weekly shopping.”

On 14 March 2016 I made an order listing the matter for hearing on Wednesday 27 April 2016 and also made a transparency pilot order, which meant that the hearing would take place in public and that representatives of the press could attend, if they wished.

In her second witness statement, made on 13 April 2016, Eileen Lawrence said:

The hearing took place on Wednesday 27 April 2016 and was attended by:

The law governing the revocation of an LPA by the court can be found in section 22 of the Mental Capacity Act 2005.

Subsections (3) and (4) provide that the court may only revoke an LPA if it is satisfied that:

An LPA can be partially revoked by virtue of subsection (5), which states that:

“If there is more than one donee, the court may under subsection (4)(b) revoke the instrument or the lasting power of attorney so far as it relates to any of them.”

The use of the word ‘may’, rather than ‘must’, in section 22 means that the court has a discretion as to whether it should revoke an LPA in the circumstances described, rather than revocation being a mandatory requirement.

When it exercises its discretion, the court must act in accordance with:

I don’t really need to know whether Sue is suffering from a mental disorder, personality disorder or behavioural disorder. I am more concerned with her conduct than what may have caused her to act in a particular way, and I have to be satisfied that she has behaved in a manner that either:

Nevertheless, some allowance must be made for the fact that most of the descriptions of her behaviour relate to a period of less than three months after she had experienced a major psychosocial stressor as a result of the terminal illness and death of her mother. Inevitably, these events affected her social and emotional functioning, at least temporarily. Sue’s conduct at the hearing on 27 April 2016 was not as remarkable as her behaviour described by the Court of Protection General Visitor on 1 October 2015, approximately six weeks after her mother’s death.

I find myself at odds with the Public Guardian’s latest submission in paragraph 32 above, which strikes me as being a non sequitur. It concluded by saying that:

In my view, Sue has not actually contravened her authority under either the LPA for property and affairs or the LPA for health and welfare, and the only issue is whether she has behaved in a way that is not in Roy’s best interests.

I observed her during the hearing, and it was obvious that she loves her father deeply and would never dream of acting other than in his best interests. She sees him twice a week and, in addition, takes him to appointments at the hospital, the dentist, the podiatrist, and the dermatologist, who is currently treating him for age-related skin cancers. Elana, to whom Sue took such great exception, is no longer Roy’s carer.

I was impressed by the first four of Sue’s proposals for co-operation with her brother, listed in paragraph 21 above. They demonstrate, on her part, an awareness of, and a genuine eagerness to apply the supported decision-making provisions in sections 1(3) and 4(4) of the Mental Capacity Act and article 12 of the United Nations Convention on the Rights of Persons with Disabilities. In this respect, I prefer her approach to that of her brother, who considers that Sue is in denial about the true extent of their father’s capabilities.

At paragraph 21(c), for example, she said, “Dad to have all decisions fully discussed with him, giving him time and support to come to his own decisions.” This is commendable conduct and, in my experience, it is unusual to find an attorney attaching such prominence to it in practice. It is the ‘factor of magnetic importance’ that compels me to let her continue to act as her father’s attorney for health and welfare.

Another important factor is that Roy and his late wife specifically chose Sue to be their sole attorney for health and welfare, whereas in their LPAs for property and financial affairs they appointed their spouse, their son and their daughter to act jointly and severally as attorneys. The distinction was clearly relevant and it should be treated with respect.

There are several differences between an LPA for health and welfare and an LPA for property and financial affairs. One is that an attorney for health and welfare has no authority to make decisions in circumstances other than those where the donor lacks, or the attorney reasonably believes that the donor lacks, capacity: section 11(7)(a) MCA 2005. In view of Sue’s commitment to supported decision-making, I would trust her intuition on when she needs to intervene and make a decision on her father’s behalf.

Another difference between the two types of LPA is that the vast majority of personal welfare decisions can be taken informally under section 5 of the MCA, and collaboratively, whereas decisions relating to property and financial affairs tend to be more formal and generally do not require the same degree of collaboration with third parties, such as healthcare and social care professionals. So, whereas Sue’s dereliction of her duties for eight weeks after her mother’s death actually made little or no difference as far as decisions regarding Roy’s health and welfare are concerned (either because he could have made the decision himself or because others could have made the decision for him pursuant to section 5), it could have had a detrimental effect on the administration of his estate, if she had been his only attorney for property and financial affairs.

I disagree with the latest submission of the Public Guardian, who seems to have changed his mind during the course of these proceedings and is now saying that he has “no objection to Sue’s continuation as attorney for property and affairs.”

In the following cases various judges considered whether, having regard to all the circumstances, an attorney acting under an Enduring Power of Attorney was unsuitable to be the donor’s attorney:

In the last of these cases, Re F, at page 284f, Mr Justice Patten (as he then was) summarised all the earlier decisions and said:

“It seems to me that to remove an 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.”

The circumstances in Re W, Re E and Re F were different from Roy’s case, where the hostility is between the two co-attorneys, rather than between an attorney and a sibling or other relative who was never appointed as an attorney in the first place. A further difference is that W, E and F were all elderly women residing in a care home, whereas Roy is still living in his own home and requires support with day-to-day activities such as shopping.

In my judgment, Sue’s continued involvement as one of Roy’s attorneys for property and financial affairs would not be in his best interests, because the hostility between her and her brother has impeded the proper administration of his estate.

The hostility between the attorneys:

By concentrating on Sue’s negative influence on the management of Roy’s property and finances, we should not overlook Philip’s positive impact. He has acted reliably and sensibly in difficult circumstances and seems to be able to interact satisfactorily with everyone who has an interest in Roy’s welfare, other than Sue.

I have no reason to believe that the revocation of Sue’s appointment as an attorney for property and financial affairs would cause significant distress to the donor. According to the General Visitor’s report, at paragraphs 15 and 16 above, Roy is aware that his son comes and looks after some of his needs but he does not know what involvement his daughter has. However, I acknowledge that these comments were made during the period when Sue had absented herself for about eight weeks, and that his response might not necessarily be the same today.

To revoke the LPA for property and affairs in its entirety and appoint an independent deputy to act in place of both Philip and Sue would be too violent a reaction in these circumstances and would not be the least restrictive intervention.

For these reasons, therefore, I shall make an order: