Re Rg
| Jurisdiction | England & Wales |
| Judge | Senior Judge Lush |
| Judgment Date | 26 January 2015 |
| Neutral Citation | [2015] EWCOP 2 |
| Date | 26 January 2015 |
| Court | Court of Protection |
| Docket Number | Case No: 11948985 |
[2015] EWCOP 2 (Fam)
Senior Judge Lush
Case No: 11948985
Fatima Chandoo for the Public Guardian
The First Respondent in person
The second respondent did not attend
Hearing date: 26 January 2015
This is an application for the court to reconsider an order made on the papers, partially revoking an enduring power of attorney (' EPA').
Rule 89 of the Court of Protection Rules 2007 says that, where the court makes an order without a hearing, anyone who is affected by it may apply within 21 days for the order to be reconsidered.
The background
RG was born in 1935 and formerly worked for Jecco, an aviation company in Bournemouth.
He used to live in Parkstone, but since May 2013 he has resided in a nursing home in Branksome.
He married twice and has four children from his first marriage, with whom he has had no contact for the last forty years.
In 1977, he married his second wife, SG, who had two children from her previous marriage, namely:
(a) a daughter, JW, who was born in 1965 and lives in Berkshire; and
(b) a son, PB, who was born in 1966 and lives in the former matrimonial home in Parkstone.
On 28 March 2006 RG signed an EPA, in which he appointed his wife and two stepchildren, JW and PB, jointly and severally to be his attorneys, with general authority to act on his behalf in relation to all his property and affairs.
In 2007 RG began to exhibit the symptoms of frontotemporal dementia, or Pick's disease, and at about the same time his wife developed a deep vein thrombosis, which eventually spread to her lungs.
In her last will and testament dated 27 May 2008 SG:
(a) appointed her husband, her son, and her sister to be her executors and trustees;
(b) gave her jewellery to her son's daughter;
(c) gave her half share of the matrimonial home in Parkstone to her trustees to allow her husband to live there for the rest of his life, and on his death the net proceeds of sale are to go to PB;
(d) gave her residuary estate to her husband; failing whom, to PB; and
(e) expressly declared she had made no provision for her daughter, JW, "due to a lack of contact during my severe illness."
RG made a mirror-image will on the same day, including declarations that he had not made any provision for:
(a) his own children "due to lack of contact over many years"; and
(b) his stepdaughter, JW, "due to a lack of contact during the severe illness of my wife SG."
SG died in October 2008 and three weeks after her death PB applied to the Office of the Public Guardian ('OPG') to register RG's enduring power of attorney. It was registered on 27 January 2009.
The relationship between the two attorneys is extremely poor and PB has consistently excluded JW from acting as an attorney.
In 2010 JW voiced her concerns to the OPG about her brother's management of RG's property and financial affairs.
The OPG formally opened an investigation and in February 2011 it applied to the court for an order requiring PB to produce a full account of his dealings under the EPA.
On 23 May 2011 District Judge Ralton made an order, on the papers, stating that:
"Further to paragraph 16(2) of Schedule 4 of the Mental Capacity Act 2005 PB shall keep annual accounts in respect of RG's estate and shall retain accountants to draw up and retain a copy of such accounts."
On 11 July 2013 the OPG wrote to PB asking for information about his management of RG's finances and it became patently obvious that PB had neither retained an accountant nor kept annual accounts as ordered by District Judge Ralton.
The Public Guardian's application
On 17 March 2014, Alan Eccles, the Public Guardian, submitted a further application, in which he sought the following order:
"An order under paragraph 16(2)(c) of Schedule 4 of the Mental Capacity Act 2005 directing PB to supply or produce the accounts he was directed to produce by order dated 23 May 2011 from 23 May 2011 to the date of the court's order within 28 days of the order.
If PB fails to provide satisfactory accounts within 28 days of the court's order, the court is asked to partially revoke the registered EPA under paragraph 16(4)(g) Schedule 4 of the Mental Capacity Act 2005 by revoking the appointment of PB as an attorney for RG leaving JW as sole attorney."
The application was accompanied by a witness statement (COP24) dated 5 March 2014 and made by Safina Hussain, an investigating officer with the OPG. In summary:
(a) There were outstanding care fees of £6,189.
(b) The nursing home was about to give RG notice to quit because of the non-payment of fees.
(c) PB was in breach of his fiduciary duties by commingling funds. He had said that RG had given him permission to use his credit card, and that he was paying off the credit card with his own money.
(d) Santander had provided the OPG with details of RG's credit card account, on which there was an outstanding balance of £752.65. It had instructed Moorcroft Debt Recovery Limited to recover the debt and a county court judgment against RG had been obtained on 4 February 2014.
(e) Santander also provided statements for an additional bank account in RG's name, which PB had not declared to the OPG.
(f) PB had said that the house in Parkstone was subject to a mortgage, which is currently in RG's sole name and is being paid solely from RG's funds, even though he lives in a nursing home.
(g) JW said that PB did not acknowledge her as a co-attorney and, therefore, it was impossible for her to assist in managing RG's property and affairs.
(h) The Public Guardian was applying for an order revoking the appointment of PB as an attorney, and limiting registration to JW as the sole attorney, because there was no evidence to suggest that JW would act other than in RG's best interests.
Several interlocutory orders were made and several witness statements were filed and on 19 August 2014 I made an order on the papers,
(a) revoking the appointment of PB as an attorney; and
(b) directing the OPG to limit the registration of the EPA to JW acting as the sole attorney.
The order was entered and issued on 5 September 2014.
The application for reconsideration
On 23 September 2014 - within the period of 21 days allowed by rule 89 - PB applied to the court to reconsider the order at an attended hearing.
His application was accompanied by a witness statement in which he said:
(a) I believe the statements from the OPG and JW to be inaccurate and biased.
(b) RG's personal opinion has not been taken into consideration.
(c) Social Services and OPG investigation reports have not been taken into consideration.
PB presented a rather more eloquent statement of his case in a letter to the court dated 4 January 2015, in which he said:
"I would like to reiterate that I have only ever had RGs' best interests, wellbeing and welfare at heart. I have given more than 8 years of care to both RG and SG and I have asked for nothing in return and have not benefited financially. Caring for RG has always been a labour of love and not for financial gain. I have always consulted RG with anything to do with his care, finances and other matters.
As RG's health deteriorated his needs became greater and more demanding. RG required constant 24 hour attention. He had become incontinent and became ill very often which required home visits from doctors and trips to the hospital on a number of occasions. I showered him, took him to the toilet, cleaned his mess, cooked for him 3 times a day and gave him his tablets twice a day and much more. This was every day for 6 years.
JW never had any involvement with RG's care but was offered the chance to care for him which she refused. I have only ever wanted to protect RG from the abusive telephone calls, letters and aggressive visits to our home from JW and her husband which seem to have been overlooked. These things are not in the best interests of RG. JW has still not visited RG at the nursing home after stating she would.
I am a kind and caring person and of good character, who has devoted as much time as possible to a man who deserved to be looked after by his family in the best possible way. RG became too ill for me to carry on looking after him and needed a good home to care for him, but I still have his best interests at heart and visit him as often as I can, usually once a week, and make sure he has everything he needs.
Even though I believe the nursing home to be at fault with an administration error in regards to RG's care fees, I am willing to pay for the said fees. Also RG's credit card and mortgage will be paid in due course, finances permitting.
I have spoken with RG and he would still like me to carry on dealing with his finances and affairs on his behalf."
On 11 December 2014 Safina Hussain of the OPG made another witness statement (her fourth), in which she said, among other things:
"Although it is not disputed that RG has been well cared for by PB during his role as attorney, the Public Guardian is of the position that RG's finances are not being managed in his best interests. Therefore, PB's application for a reconsideration of the court order issued on 5 September 2014 limiting the registration of the EPA to JW only, should be dismissed.
Despite...
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