The Public Guardian v RL, FJ, and KLC
| Jurisdiction | England & Wales |
| Judge | Senior Judge Lush |
| Judgment Date | 08 January 2016 |
| Neutral Citation | [2016] EWCOP 2 |
| Court | Court of Protection |
| Docket Number | Case No: 12744349 |
| Date | 08 January 2016 |
[2016] EWCOP 2
Senior Judge Lush
Case No: 12744349
Re SH
Rebecca Stickler, instructed by the Office of the Public Guardian, for the applicant
The respondents in person and unrepresented
Hearing date: 10 December 2015
This is an application by the Public Guardian for the revocation of two Lasting Powers of Attorney; a Lasting Power of Attorney (' LPA') for property and affairs and an LPA for personal welfare.
The background
Sybil is 93. She was born in Barbados on 30 May 1922 and came to live in England in 1960.
She worked for several years at St Leonard's Hospital, Hackney; then at Whipps Cross Hospital, and finally in Alliston House, a care home in Walthamstow run by the London Borough of Waltham Forest Council.
She lives in a two-bedroom first-floor flat in Walthamstow, London E17 with her granddaughter, Fatima, who was born on 13 September 1977, and Fatima's husband and three daughters, who are aged 16, 13 and 5.
Sibyl married a man from Trinidad, from whom she had separated before she came to England. He died in 2000. She has three sons:
(a) Karl, who was born on 30 November 1946 and lives in, Beckton, London E6;
(b) Rex, who was born on 18 March 1949, converted to Islam, and changed his name to Mohammed. He lives in Trinidad and is Fatima's father; and
(c) Ray, who was born on 19 April 1958, is a postman and lives in South Woodford, London E18.
On 15 April 2002 Sybil bought her flat from the Waltham Forest Community-Based Housing Association for £29,000. Her son Ray paid the entire purchase price and she executed a trust deed, in which she acknowledged that Ray was the beneficial owner of the property. In the same deed, Ray granted Sibyl the right to live in the flat for as long as she wishes, provided she pays all the outgoings.
On 23 April 2008 Sybil executed an LPA for property affairs and an LPA for personal welfare, in which she appointed Ray to be her sole attorney.
An application was made to the Office of the Public Guardian ('OPG') to register the LPAs. The LPA for property and affairs was registered on 23 September 2008 and the LPA for personal welfare was registered on 26 January 2009.
On 17 July 2008 Sibyl made a will, in which she left her entire estate to Ray and appointed him to be her sole executor. If he predeceases her, then half of her estate will go to her son Mohammed and the other half will go to her grandchildren. The will was drawn up by J. H. Hart & Company, Solicitors, Upton Park, London E6.
In August 2008 Sibyl was diagnosed as having dementia. She is now severely demented, non-communicative and doubly incontinent. She also has osteoarthritis, type 2 diabetes, Sjögren's syndrome (which is an autoimmune disorder) and a history of recurrent urinary tract infections.
There have been several complaints to the OPG about the attorney's conduct. On each occasion the whistleblower has been Sybil's eldest son, Karl.
The application
On 9 July 2015 the Public Guardian applied to the court for the following order:
"The applicant seeks an order under section 22(4)(b) of the Mental Capacity Act 2005 directing:
(1) The revocation of the registered LPAs made by Sybil on 23 April 2008 and registered on 23 September 2008 and 26 January 2009.
(2) Should the court decide to remove the attorney, the court is asked to consider appointing London Borough of Waltham Forest Council as deputy to manage the property and financial affairs of Sybil."
The application was accompanied by a witness statement made on 8 July 2015 by David Richards, an investigations officer with the OPG. In summary:
(a) Concerns were raised (again) on 23 November 2014.
(b) Ray only visits Sybil once a year and he has delegated his functions as attorney to his niece, Fatima.
(c) He hasn't provided Fatima with a gratuitous care allowance of £300 a week, which he had promised to pay her.
(d) In November 2010 Sybil moved to Trinidad to live with her son Mohammed and his daughter Fatima. It was intended to be a permanent move and Ray was obliged to transfer to Fatima a lump sum of £15,000 from Sybil's funds in order to satisfy the Trinidadian government that Sybil had adequate funds to support herself.
(e) In the event, Sybil returned to her flat in Walthamstow in 2012 and Fatima and her husband and their three daughters joined her.
(f) A Court of Protection General Visitor saw Sybil on 11 February 2015 and confirmed that she has severe dementia and lacks the capacity to revoke the LPAs.
Procedure
On 11 September 2015 I made an order requiring:
(a) the OPG to serve the papers on the attorney, Ray, by 25 September;
(b) Ray to respond to the application by 16 October;
(c) Waltham Forest Council to confirm that it was willing to act as deputy by 16 October; and
(d) the matter to be referred back to me on or after 19 October 2015.
On 13 October 2015 Marcus Power of Waltham Forest Council filed an acknowledgment of service, in which he said:
"The authorised officer of the London Borough of Waltham Forest was originally minded to take on the role of deputy for Sybil. However, in light of significant demand pressures, limited staffing resources within the section, and the complexity of the evidence submitted by the Public Guardian, the authorised officer has made the decision to withdraw the agreement to act."
Marcus Power suggested that the court should appoint a panel deputy, instead. The panel consists of approximately seventy professional deputies who have been appointed by the OPG. The court selects a deputy from the panel when no other suitable person is willing or able to act for someone who lacks mental capacity.
On 13 October 2015 Karl filed an acknowledgment of service and a witness statement in which he said:
"I was the person who first wrote to the OPG with concerns over (a) the LPAs, (b) the 'will', (c) the 'trust deed' which my brother Ray holds regarding our mother's affairs. My concerns are that the proper procedures were not observed in obtaining them. I am requesting my niece Fatima assumes control of our mother's affairs."
On 16 October 2015 Fatima made a witness statement in which she said:
"I would like the LPA in favour of my uncle Ray to be revoked and I to replace him instead of the proposed Waltham Forest Council.
I would like the court to review my uncle's acquisition of the leasehold of [the property in Walthamstow] from my grandmother.
I would like the court to review the will dated 17th July 2008 as I believe she lacked capacity to understand what she was signing."
On 27 October 2015 I made an order:
(a) reciting the fact that Waltham Forest Council was not prepared to act as Sybil's deputy and that it had suggested that a panel deputy be appointed instead;
(b) joining Fatima and Karl as parties to the proceedings as the second and third respondents respectively;
(c) requiring an officer of the court to send the Public Guardian copies of the respondents' acknowledgments of service and witness statements:
(d) requiring the Public Guardian to respond by 20 November;
(e) giving the respondents a final opportunity to file and serve any further evidence or submissions by 4 December; and
(f) listing the matter for hearing on 10 December 2015.
David Richards' witness statement for the Public Guardian
On 17 November 2015 David Richards made a second witness statement, in which he said:
(a) While no evidence has been filed by Ray, on 4 November 2015 he informed the OPG by telephone that he is content with being removed as attorney but would like whoever is appointed as deputy to pursue the issue of the money paid to Fatima, when the donor was living in Trinidad between 2010 and 2012.
(b) In Fatima's witness statement, she states that she has looked after the donor since 2008 and feels that she is best placed to understand the donor's needs and requirements. She wishes to be appointed as deputy, although her statement is unclear whether she is seeking to be appointed as health and welfare deputy as well as property and finance deputy.
(c) Fatima requests the court to review Ray's acquisition of the donor's property [in Walthamstow] and the donor's capacity to have made a valid will in July 2008, as she believes the donor was diagnosed with severe dementia one month after the will was made.
(d) In Karl's statement, he shares the same concerns as Fatima, that the will and the trust deed regarding the property are not valid. He provides emails he sent to the OPG. Amongst other things he claims that the donor's signatures on the LPAs are false and that it is likely that she already had dementia when she made the LPAs.
(e) The appointment of an independent deputy would be preferable, if the court requires the deputy to further investigate Ray's concerns regarding the lack of an explanation by Fatima about how the £15,000 paid to her in 2011 was dealt with. However, it does seem quite likely that these funds were spent on the donor while she lived in Trinidad, and there seems to be limited prospects of a further investigation leading to any of these funds being recovered.
(f) While an independent professional deputy would be able to consider the concerns about the will and the purchase of [the property], neither the court nor the deputy has the power to decide whether a will is valid. The deputy could apply to the court for the execution of a statutory will but this would be a costly process and might not be appropriate or necessary as the donor's estate is very small.
(g) In addition, the purchase under the Right-to-Buy Scheme took place in 2002, which was several years before the donor was diagnosed with dementia. Furthermore, the donor...
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