Re F (Enduring power of attorney)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Patten |
| Judgment Date | 02 April 2004 |
| Neutral Citation | [2004] EWHC 725 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: 50804825 |
| Date | 02 April 2004 |
[2004] EWHC 725 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Patten
Case No: 50804825
In the Matter of the Enduring Powers of Attorney Act 1985
Mr A, the Appellant, in person
Leon Sartin (instructed by Harding Evans) for the Respondent
Approved Judgment
Hearing dates: 15 th March 2004
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Patten
This is an appeal from the refusal of Master Lush, the Master of the Court of Protection, to register an enduring power of attorney dated 10 th July 2000 which was made by the donor (Mrs F) in favour of her son (Mr A). The Master upheld an objection to registration on grounds of the unsuitability of Mr A to be the donor's attorney, which was lodged by his sister (Mrs B).
Mrs F was born in 1917. Her husband died in 1987. There were two children of the marriage (Mr A and Mrs B). Until 2002 Mrs F continued to live in a large house which she and her husband had purchased after the Second World War. The evidence before the Master was that Mrs F was extremely attached to her home and was very reluctant to leave it. She had told her friends and family that she wished to remain there for the rest of her life. But by 2002 she had become unable to cope with the maintenance and upkeep of the property and its garden and was persuaded by her children to move into a nursing home. Even then she was unwilling to sell the house and had hoped that it might be let to provide her with an income.
Mr A is a retired solicitor who was born in 1946 and continues to live close to his mother. His sister, Mrs B, who was born in 1950, lives abroad in Ireland. She has a family of her own and is obviously unable to visit her mother with the same regularity as Mr A, but between her visits she maintains frequent contact with her mother by telephone. Both children are clearly concerned to do the best for their mother, but the difficulty which has arisen in this case is that Mr A and Mrs B have been at odds with each other for some time and the disagreements and animosity between them have spilled over into the question of whether effect should be given to the power of attorney executed in Mr A's favour.
It is clear that the donor has in the past chosen to place her affairs in the hands of Mr A. The power of attorney was executed in July 2000, and in October 2001 Mrs F executed a will under which her son was appointed to be the sole executor. He is also, I believe, the executor of his father's will. One of the complications of this matter is that the family home was held by Mrs F and her late husband as joint tenants. On the advice of Mr A as part of what I am told was a scheme to minimise inheritance tax, his father served notice of severance on Mrs F, with the result that at his death the property was held by Mrs F as the surviving joint tenant on trust for herself and her husband as tenants in common in equal shares. Under their father's will Mr A and Mrs B are entitled to pecuniary legacies of £45,000 each, with the residue being held upon trust for Mrs F absolutely. In order to make title to the family home on a sale, it will be necessary for Mr A to appoint an additional trustee in order to give a good receipt. It seems to be common ground that the power of appointment would vest in him as Mrs F's attorney and that he could exercise the power on her behalf: see Trustee Act 1925 s.36(6A)-(6B). It would then be for him to arrange for the investment of his mother's share of the proceeds of sale, including the share of residue due to her under her late husband's will.
The difficulties which have arisen are due to Mrs F's declining state of health. The medical evidence contained in a report by Dr X, the Lord Chancellor's Medical Visitor, based on a visit to Mrs F in October last year, is that she is suffering from arteriosclerotic dementia, which has led to some memory loss. She has also suffered a stroke, but her residence in the nursing home seems to have stabilised her condition and she is able to hold rational conversations. She is, however, disorientated in relation to dates and other historic details, and her mental condition will deteriorate with the passage of time. It is also clear that she can become confused. At one point in the interview Mrs F asked Dr X why she had come and became distressed during the examination when she was asked to carry out a counting exercise.
The importance of the evidence from the Lord Chancellor's Medical Visitor is that it forms the basis, and indeed the only evidence, upon which Mrs B's objection to registration is now sought to be maintained. During the course of her interview with Dr X, Mrs F expressed concern that her son and daughter were having disagreements. She would prefer them "to live together and agree". She also wanted Mr A to discuss things with his sister. She then went on to say that if they could not agree, it would be better for an independent receiver to be appointed.
The Master, in his judgment, interpreted Mrs F's wishes and feelings to be that:
"…if the continued operation of the enduring power of attorney is likely to be a festering sore or a stumbling-block that prevents her children from behaving in a civil manner towards one another, then she would rather an independent receiver be appointed.
It is clear to me that the continued operation of the power is likely to be a stumbling-block that prevents any prospect of reconciliation between her son and daughter.
[Mr A] contends that his mother's views do not reflect an informed decision on the matter, that there would be considerable cost implications in appointing a receiver, and that there would be practical day-to-day difficulties over being reimbursed for small items of expenditure, such as purchasing items of clothing, giving Christmas or birthday presents, and treats such as going out for lunch.
I agree that there are cost implications, but when [the house] is finally sold and the net proceeds are properly invested, there should be relatively little for the receiver to do, and it is unlikely that the costs would be substantial. In any even, [Mrs F] has a fairly substantial estate, and the costs should not be disproportionate, or cause any hardship or adversely impact on her standard of living. The practical day-to-day problems to which [Mr A] referred can be easily overcome."
He therefore upheld the objection to registration on grounds of unsuitability.
Before me Mr A has repeated his submission that his mother's expressed views are unreliable as an accurate account of her true wishes and feelings. To support this he has produced an undated letter in Mrs F's handwriting, in which she says that she wants Mr A to act for her in all her affairs and that she does not want anybody else. She says in the letter that he has acted as she has wished and that she wants this to continue. There is no evidence as to when and in what circumstances this letter came to be written and there is therefore little weight which I can attach to it. If Mr A is right and his mother's statement to Dr X is unreliable as an accurate statement of her wishes, it must also follow that this letter is subject to the same reservations.
The Master upheld Mrs B's objection to the registration of the power of attorney on the ground that Mr A was unsuitable by accepting at face value Mrs F's statement to Dr X that she would prefer an independent receiver to be appointed if her son and daughter could not agree. The likely continuation of bad relations between them due to the attorneyship was, in the Master's judgment, the cause of her concern. She did not suggest that she regarded her son as unsuitable to be her attorney for any other reason, nor is there any evidence that he would fail to carry out his duties as attorney otherwise than in accordance with the law and in the best interests of his mother. In this connection some reference needs to be made to the history of these proceedings.
On 21 st January 2003 Mrs B applied to be appointed her mother's receiver under s.99 of the Mental Health Act 1983. In a letter to the Court of Protection enclosing the receiver's declaration and other documents, her solicitors referred to her concerns that Mr A would seek to use the power of attorney to sell Mrs F's property. The letter also states that Mrs B has had grave reservations about his conduct of her mother's affairs and that any communications between them are "confrontational". The solicitors refer to Mr A failing to provide information about investments and complain about losses incurred on the Stock Market. However, the principal cause of concern appears to have been the family house. Any sale of this was, they said, likely to cause Mrs F considerable distress.
Mrs B's application to be appointed her mother's receiver led to Mr A applying for the registration of the power of attorney. In a letter...
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