TB and SP v KJP and Another
| Jurisdiction | England & Wales |
| Judge | Senior Judge Lush |
| Judgment Date | 14 January 2016 |
| Neutral Citation | [2016] EWCOP 6 |
| Court | Court of Protection |
| Date | 14 January 2016 |
| Docket Number | Case No. 12489343 |
[2016] EWCOP 6
COURT OF PROTECTION
MENTAL CAPACITY ACT 2005
First Avenue House
4249 High Holborn
London WC1V 6NP
Senior Judge Lush
Case No. 12489343
Ulele Burnham, instructed by Richard Nelson LLP Solicitors, for the applicants
Norman Hunter-Goulder of BBW Solicitors for the respondent
Hearing date: 24 November 2015
This is an application for permission to appeal a decision made by District Judge Mort.
The background
These proceedings relate to Ken, who was born on 31 December 1928 and lives in Norfolk. He is a retired town and country planner.
He married his first wife, Margaret, in 1952 and they had two children:
(a) Jacqueline, who is 58, lives in Nottinghamshire, and is a physiotherapist; and
(b) Nigel, who is 53, lives in Essex, and is an independent financial adviser.
Margaret died on 25 May 2007.
On 17 July 2007 Ken signed an Enduring Power of Attorney (' EPA'), in which he appointed Jacqueline and Nigel jointly and severally to be his attorneys, with general authority to act on his behalf in relation to all his property and affairs.
In 2009 he began dating a lady called Jeanne, who had been married before and has a son named Felix. On 1 January 2010 Ken gave Felix £100,000. The intention was that Ken would buy out Felix's share of Jeanne's former matrimonial home, but no steps have been taken yet to reflect the change in the legal and beneficial ownership of that property at the Land Registry.
Ken and Jeanne were married on 24 March 2010.
On 31 December 2012 Ken mentioned to his attorneys that he had made a further payment of £5,000 to his stepson, Felix, but he wasn't entirely sure why he had done so. The attorneys looked into his finances more closely and became concerned about the installation of an alarm system, which they thought was overpriced and surplus to requirements. They arranged a meeting with the local manager of the HSBC Bank, which was attended by the attorneys and Ken and Jeanne, and it was agreed that the bank would notify the attorneys of any expenditure over £1,000.
On 2 May 2013 the attorneys applied to the Office of the Public Guardian to register the EPA, having given notice to Ken and Jeanne of their intention to apply for registration. There were no objections and the EPA was registered on 18 June 2013.
In late August 2013 the attorneys decided to restrict Ken's access to his income to a carer's allowance of £212 per month and to limit his access to capital to an account held in his and Jeanne's joint names, on which there was a balance of approximately £6,000.
The revocation of the EPA
The relationship between Ken and his children progressively deteriorated and on 4 March 2014 Ken executed a deed in which he revoked the EPA. His signature was witnessed by Dr Nicholas John Viale, of St Andrew's Lodge, Julian Hospital, Bowthorpe Road, Norwich.
On 17 March 2014 Ken applied to the Court of Protection to confirm the revocation of the EPA pursuant to paragraph 16(3) of Schedule 4 to the Mental Capacity Act 2005.
In response to the question in the application form, "How would the order benefit the person to whom the application relates?", Ken said:
"The applicant has been denied access by the attorneys under the Enduring Power of Attorney deed to his income (state pension and civil service pension) and capital in his bank accounts, as a result of which he has no money to live on. The applicant would then have access to much needed income to live on and would be able to manage his own financial affairs. The applicant would no longer be subject to financial abuse from his attorneys."
Michael Young, a chartered legal executive with Broadland Probate Services Limited, Brundall, Norwich, acted for Ken in connection with his application to the court.
Dr Viale's assessment of Ken's capacity to revoke the EPA
Accompanying Ken's application to confirm the revocation of the registered EPA was an assessment of capacity completed on 4 March 2014 by Dr Viale, who gave the following background information about his professional qualifications and experience:
"I am a consultant old age psychiatrist. I saw Ken, at the request of his general practitioner, on 29/10/13 and again on 4/3/14.
MB BS 1994 University of London. MRCPsych 2005 Royal College of Psychiatrists
I regularly assess the cognitive functioning of patients, including assessments of capacity. I have over 15 years' experience in this area."
The assessment of capacity form (COP3) that Dr Viale completed is the form usually used to accompany an application for the appointment of a deputy, and it is worded in such a way that it assumes that the person being assessed lacks capacity to make a decision for himself in relation to a matter, because of an impairment of, or a disturbance in the functioning of, the mind or brain. For this reason, Dr Viale carefully underlined certain words to emphasise the fact that Ken did not lack capacity. He said:
"I am completing this form to state, in my opinion, that Ken does have the necessary capacity to revoke an Enduring Power of Attorney which he signed on 17th July 2007. I support the application to cancel the said Enduring Power of Attorney and enable Ken to manage his own property and affairs.
Ken has mild vascular dementia – but this does not, in my opinion, affect his ability to manage his financial affairs at this point in time.
My examination of Ken does not indicate when his vascular dementia was first present. It was present when I assessed him on 29/10/13.
In my opinion, and following discussions with his solicitor, Mr M. Young, I believe Ken has the capacity to sign a revocation of the Enduring Power of Attorney he signed in 2007.
He is able to understand:
• who the attorneys are
• what authority they have
• why it is necessary or expedient to revoke the power.
He is able to retain information relating to issues regarding revocation of the Enduring Power of Attorney.
He is able to weigh relevant information such as the benefits and risks of revoking the Enduring Power of Attorney.
I believe Ken does have capacity relating to the revoking of the Enduring Power of Attorney as he is able to:
• comprehend information relevant to the decision
• retain information
• weigh in the balance to arrive at a choice
• communicate that decision.
I assessed the person to whom the application relates on 4 March 2013 following a referral from Mr M Young, Broadland Probate Services, 19 St Michaels Way, Brundall NR13 5PF.
Ken currently has capacity in relation to management of his property and financial affairs. In view of his diagnosis of vascular dementia this may change in the future. He is in the process of arranging a Lasting Power of Attorney for future potential use."
In response to question 7.7 on the prescribed form, "Are you aware of anyone who holds a different view regarding the capacity of the person to whom the application relates?" Dr Viale ticked the 'Yes' box and said:
"I believe his son, Nigel, and daughter, Jacqueline, may believe their father not to have capacity relating to this issue – they activated the Enduring Power of Attorney in early 2013."
Dr Liam Hughes' letter
Ken subsequently filed further evidence of his capacity in the form of a letter written on 13 June 2014 by his consultant cardiologist, Dr Liam Hughes MD, FRCP, of Spire Hospital, Norwich, to Mr Young of Broadland Probate Services.
Dr Hughes said:
"I am writing to you at the request of Ken who has been a patient of mine since 2007. Ken informed me some time ago that there was a dispute involving his financial situation, and in particular asked me whether, in my opinion, he has capacity to run his own affairs.
Since I first met Ken in 2007 to the present day I have never had the slightest doubt with regard to his capacity to understand his medical condition. He has not only fully understood the nature of his condition, but has been able to give an accurate history and description caused by his various cardiac problems."
Dr Hughes described various cardiac operations that Ken had undergone in 2008, 2012 and 2013, which need not concern us in these proceedings, and then went on to comment that:
"As well as being a Consultant Cardiologist with more than 20 years' experience, I am a permanent member of the hospital Ethical Committee. This requires me to consider a number of ethical issues, but perhaps most commonly whether patients have sufficient capacity to consent for various procedures. Based on my experience with the committee, I have absolutely no doubt that Ken has full capacity to not only determine broad decisions, but also to take into consideration even minor bits of information that might have a subtle influence on his decision. I am, of course, not a financial expert, but I think it would be impossible for Ken to have full capacity to make the sort of decisions he has made with regard to his health, and not be in a position to manage his own finances. I would therefore be prepared to support his application to regain control of his finances and, if required, would be more than happy to provide a report for the court, should it be necessary.
Finally, although I have no doubt about this man's mental capacity, he is elderly and somewhat frail. Travelling long distances would put him under some physical duress, and I am certain it would be preferable for any court hearings to be held locally, should this matter not be resolved out of court."
The objections
On 6 May 2014 Jacqueline filed an acknowledgment of service (COP 5) in which she opposed the application. She said:
"As registered EPA attorney for Ken (my father) ('the applicant') and in conjunction with my brother Nigel, we have sought to act at all times in our...
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