The Public Guardian v JD and GB
| Jurisdiction | England & Wales |
| Judge | Senior Judge Lush |
| Judgment Date | 20 April 2015 |
| Neutral Citation | [2015] EWCOP 26 |
| Docket Number | Case No: 12608730 |
| Court | Court of Protection |
| Date | 20 April 2015 |
[2015] EWCOP 26
COURT OF PROTECTION
IN THE MATTER OF ED
First Avenue House
42-49 High Holborn
London WC1V 6NP
Senior Judge Lush
Case No: 12608730
Gemma Hopper for the Public Guardian
The respondents in person
Hearing date: 19 March 2015
This is an application by the Public Guardian to revoke an Enduring Power of Attorney (' EPA'). Because of the nature of the application, I am required by the practice guidance on Transparency in the Court of Protection: Publication of Judgments, [2014] COPLR 78, to allow this judgment to be published.
The facts
ED was born on 11 April 1918 and has vascular dementia.
She used to live in Marlow, Buckinghamshire, but since 10 January 2015 she has lived in a residential unit in Stoke Mandeville, which provides specialised dementia care.
Her husband died in 1984.
She has two daughters:
(a) JD, who is 61, lives in Buckinghamshire and is a retired general practitioner; and
(b) GB, who is 58, lives in Berkshire and is a radiographer.
ED's daughters don't see eye to eye. In fact, they detest each other. According to JD, the two of them have been in the same room together on five occasions during the last five years, and on each occasion GB has refused point blank either to speak to her or even acknowledge her presence. The only communication between them is by email, and this is usually rancorous in tone.
On 25 September 2007 ED executed an EPA in which she appointed her two daughters jointly to be her attorneys, with general authority to act on her behalf in relation to all her property and affairs. Her signature was witnessed by a friend of the family.
On 27 September 2007 GB executed Part C of the EPA and her signature was witnessed by a work colleague. She then posted the document to her sister.
JD executed Part C of the prescribed form in the presence of a friend on 30 September 2007, which was the last day on which it was possible to create an EPA. On 1 October 2007 the Mental Capacity Act 2005 came into force, and EPAs were replaced by Lasting Powers of Attorney.
JD sent GB a photocopy of the executed EPA and the original document was put away in a drawer, to be brought out only when the attorneys had reason to believe that ED was, or was becoming, incapable by reason of mental disorder of managing and administering her property and affairs.
At some stage, and it doesn't really matter when, JD downloaded a new page 2 from the internet, and changed the attorneys' appointment from 'joint' to 'joint and several.' JD says that this happened during the spring or summer of 2008. GB believes it occurred much later, in 2013, immediately before JD applied to the Office of the Public Guardian ('OPG') to register the EPA.
On 6 September 2013 GB phoned the OPG to enquire about the progress of JD's application to register the instrument and discovered for the first time that the nature of the appointment had been changed from 'joint' to 'joint and several'. She made vociferous representations to the OPG but, nevertheless, the EPA was registered on 9 September 2013.
The application
On 5 December 2014 the Public Guardian applied to the court for the following order:
1. JD and GB to submit witness statements within 14 days specifically dealing with:
(a) the creation of the original EPA;
(b) the date page 2 was amended from jointly to jointly and severally;
(c) who made the amendment on page 2 from jointly to jointly and severally; and
(d) who witnessed the amendment made on page 2 from jointly to jointly and severally.
2. An order under Schedule 4 paragraph 16(4)(g) directing the PG to revoke the EPA and to cancel the registration of the EPA made by ED. Should the EPA be revoked and registration cancelled, then a member of the panel of deputies should be invited to make an application to become ED's deputy for property and financial affairs.
On 16 December 2014 I made an order listing the matter for an attended hearing on 18 February 2015, and set out a timetable for filing and serving evidence and submissions. Following a request from JD for additional time, the date of the hearing was postponed to 19 March 2015.
On 12 January 2015 GB filed a witness statement, in which she described her version of events and on 10 February 2015 JD filed a witness statement, in which she said as follows about changing the type of appointment:
" In the following months the realisation came that the appointment type had been wrongly entered on the EPA. I did not discuss this with my sister at the time due to our difficult relationship but hoped that she would come to this conclusion herself before the EPA needed to be registered. It seems that mum did not discuss it with her either. Some time during the spring/summer of 2008 mum and I discussed this with her sister Norma Ball and I reprinted the front pages from the internet. We changed the second page of the EPA to reflect mum's wishes of joint and several attorneys, since we all agreed this to be in her best long term interests especially given the contact between my sister and me. We were aware that the option to draw up a new EPA had then passed. On this occasion I filled in the detail on page 2 as requested by mum, as she often asked me to do since she was finding writing increasingly difficult probably due to a small TIA (mini stroke) affecting the fine controlling of her right/dominant arm, diagnosed in 2007. It did not occur to any of us that this amendment should be dated and signed — either through naivety or ignorance but certainly not through malevolence. With the benefit of hindsight it is easy to see the error of our ways and that we should probably have drawn up an LPA at that point. This document was them effectively "put in a drawer" and forgotten about until 2013."
On 11 March 2015 Laura Knight of the OPG made a witness statement, in which she said as follows:
" On reviewing the respondents' witness statements, the answers to the questions posed by the court are:
(a) A full description of the circumstances in which the EPA was created:
The respondents disagree about whether they and ED were present at the execution of the EPA or what discussions had taken place about it with their mother. Both agree that ED was a frugal person and did not want a solicitor to be involved in the process.
They differ too on why the choice of appointment as joint was made — GB saying it was ED's active choice to ensure that both daughters acted together; JD saying that this was based on her mistaken understanding of the term, presumably a mistake made by ED.
The Public Guardian's position is that the guidance on the EPA forms at the time was reasonably clear and in simple language. ED is no longer able to confirm how much understanding of the two forms of appointment she had. Of the two statements it is more difficult to believe that a professional person with the responsibilities of JD would misunderstand the difference in appointment types when it seemed so important, and would not think to contact a solicitor, the OPG or some other source of legal information before signing.
(b) Details of the date on which page 2 was amended from 'jointly' to 'jointly and severally'
GB makes no comment on this, on the basis that the EPA was not within her control after it was signed by the parties. In paragraph 9 of her witness statement JD refers to a conversation with her aunt Norma Ball (now deceased) at which it was agreed that the deed should be amended.
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