The Public Guardian v MD and Others
| Jurisdiction | England & Wales |
| Judge | Senior Judge Lush |
| Judgment Date | 07 July 2014 |
| Neutral Citation | [2014] EWCOP 12 |
| Court | Court of Protection |
| Docket Number | Case No: 12452930 |
| Date | 07 July 2014 |
[2014] EWCOP 12
COURT OF PROTECTION
First Avenue House
42-49 High Holborn,
London, WC1V 6NP
Senior Judge Lush
Re AB (Revocation of Enduring Power of Attorney)
Case No: 12452930
Marion Bowgen for the The Public Guardian
MD and WD in person
Christine Cooper for the The London Borough of Brent
Hearing date: 20 June 2014
This is an application for the court to revoke an Enduring Power of Attorney (' EPA') on the ground that, having regard to all the circumstances, the attorneys are unsuitable to be the donor's attorneys.
In accordance with the President's guidance on the publication of judgments [2014] COPLR 78, unless there are compelling reasons why the judgment should not be published (which there are not in this case), I am required to publish a judgment arising from "any case where the issues include whether a person should be restrained from acting as an attorney or a deputy or that an appointment should be revoked or his or her powers reduced."
The attorneys are AB's nephews and I have anonymised this judgment in accordance with paragraph 20(iii) of the guidance, which says that, "anonymity in the judgment should not normally extend beyond the privacy of the adults who are the subject of the proceedings and other members of their families, unless there are compelling reasons to do so."
The family background
AB was born in County Cavan, Ireland, on 24 April 1928 and came to England when she was in her early thirties.
She was married briefly, but had no children.
She lives in a residential care home in Kingsbury, London NW9.
AB's sister-in-law, Maureen, is the widow of her brother, James. Maureen also lives in Kingsbury and has four sons (JD, MD, SD and WD) and one daughter (CL).
On 11 June 2007 AB signed an EPA, in which she appointed her nephews MD and WD jointly and severally to be her attorneys with general authority to act on her behalf in relation to all her property and affairs.
MD was born in 1962, is a plasterer, and lives in Kingsbury.
WD was born in 1964, is a quantity surveyor, and lives in West Yorkshire.
The EPA was drawn up by Hamilton Downing Quinn, Solicitors, Museum Street, London WC1.
AB has dementia.
Attorneys acting under an EPA have a duty to apply for the registration of the instrument if they have reason to believe that the donor is, or is becoming, mentally incapable of managing and administering their property and affairs. In August 2007 MD and WD applied to the Court of Protection (which was then the registration authority for powers of attorney) to register the EPA, and registration took place on 26 September 2007.
Property transactions
Until July 2006 AB lived in her own flat in Cricklewood, London NW2. Her family were concerned that she was becoming frail and forgetful, and decided that she should move in with her sister-in-law, Maureen, with whom she stayed until February 2007. WD and MD bought a flat nearby, known as 'The Lodge', with the intention that AB would live there. She moved into The Lodge in March 2007 and remained there for six months until September 2007. Her attorneys-cum-landlords, WD and MD, charged her rent and also required her to pay the costs of refurbishing The Lodge. In September 2007 she returned to live with Maureen, because by then she had become incapable of living independently. She stayed with Maureen until July 2008, when she was admitted into residential care.
Throughout this period the attorneys had let AB's flat in Cricklewood to a housing association, though it is unclear when they started to receive rent and into whose account it was paid. There were significant problems with the tenant and the flat was used for illegal activities involving drugs and firearms. The housing association eventually agreed to evict the tenant and surrender the lease. In April 2009 Bairstow Eves valued the property in the region of £230,000 and recommended marketing it at that price. In the event, the only offer received was for £200,000, and the attorneys agreed to sell the property to their sister, CL, for that sum. They sold it to her on 18 January 2010.
The application
On 24 January 2013 Brent Council wrote to the Office of the Public Guardian expressing its concern that AB's attorneys had not paid her residential care home fees, the arrears of which at that time stood at £23,334.
The Public Guardian opened a formal investigation into the matter, and sent a Court of Protection General Visitor, Sally Wexler, to see AB. It was not the most productive of visits, and in her report dated 27 June 2013 Sally Wexler said:
"The client appeared to have no knowledge of having signed any EPA. She became increasingly hostile as I attempted to question her further, responding to me with verbal aggression, swearing, screaming and spitting. Based on that presentation, I concluded that the client does not have the capacity to revoke or suspend the EPA.
During our brief interview, the donor did tell me that she "couldn't care less where I am." She was under the impression that she still had her flat. She told me that she did not know how long she had lived at [the residential care home], at which point she let out a piercing scream, asked if I had any more stupid questions, and told me to go to hell."
On 31 January 2014 the Public Guardian applied to the court for the following order:
"An order under Schedule 4 paragraph 16(4)(g) and sub-paragraph (5) of the Mental Capacity Act 2005 directing the revocation of the Enduring Power of Attorney and directing the Public Guardian to cancel the registration of the Enduring Power of Attorney made by AB.
An order inviting the London Borough of Brent to seek to apply to become deputy in respect of the management of AB's property and affairs and given authority to take such steps as may be necessary to restore her finances to their correct level."
The application was accompanied by a witness statement dated 28 November 2013 and made by Imran Rasool, an investigations officer with the Office of the Public Guardian ('OPG'), who, after referring to the property transactions described in paragraphs 14 and 15 above, said:
(a) On 9 February 2011 the attorneys had given £15,000 of AB's funds to their mother Maureen to purchase a car.
(b) On 11 February 2011 the attorneys had made a loan of £10,000, and on 29 September 2011 had made a further loan of £40,000, from AB's funds to their brother SD to assist him in purchasing a new property whilst his current property was on the market.
(c) The attorneys had failed to explain withdrawals from AB's funds totalling £60,020.68.
On 13 February 2014 and 24 April 2014 I made orders setting out a timetable for the parties to file and serve their evidence, and the application was listed for hearing on Friday 20 June 2014.
The attorneys filed a witness statement dated 14 May 2014, to which they appended some accounts, which they claimed had been signed off by their accountants, Goldblatts of London WC1. Their witness statement concluded as follows:
"In all the circumstances it is submitted that it is in AB's best interest to reject the application made to revoke the EPA and for the attorneys to continue to act under the authority of that EPA. The attorneys will be happy to submit annual accounts to the OPG and will if deemed appropriate by the court agree that they will not make financial decisions concerning financial sums in excess of a specified amount, say £5,000, without first seeking permission and approval from the OPG. If the court rejects this submission and is minded to revoke the EPA, it is submitted that an independent deputy be appointed and absolutely not the London Borough of Brent."
Christine Cooper's position statement
Christine Cooper is a barrister at Field Court Chambers and specialises in local government law. The London Borough of Brent instructed her to act for it in these proceedings and, in anticipation of the hearing on 20 June 2014, she filed a position statement in which she made the following submissions:
"The lengthy responses to the various questions raised by the Public Guardian provided by the attorneys show that AB's funds have been substantially dissipated. The purported accounts exhibited to the witness statement served on Brent on 3rd June 2014 are not signed off by an accountant, as claimed in the body of the witness statement, and the underlying documents have never been disclosed. There are many assertions that solicitors and professional advisors were consulted before undertaking transactions but no details are provided and there is no such advice exhibited. Brent does not have any confidence in the figures provided.
What is clear, even on their own case, is that the attorneys treated AB's funds as their own private bank and doled them out to members of the family, until they reached the point where she was unable to pay for the care she needs. This was not in AB's best interest.
There are a number of transactions that, even on the respondents' own case, did not fall within their powers and were manifestly not in her best interest. These include the loans to SD, the purchase of a car for Maureen, the transfer...
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