The Public Guardian v IT and Others
| Jurisdiction | England & Wales |
| Judge | Senior Judge Lush |
| Judgment Date | 25 February 2015 |
| Neutral Citation | [2015] EWCOP 10 |
| Court | Court of Protection |
| Docket Number | Case No: 12525971 |
| Date | 25 February 2015 |
[2015] EWCOP 10
Senior Judge Lush
Case No: 12525971
Re DT
Nadia Dhillon for the Public Guardian
The respondents attended in person and were not represented
Hearing date: 19 February 2015
This is an application by the Public Guardian to revoke and cancel the registration of an Enduring Power of Attorney (' EPA').
It is unusual for me to dismiss an application by the Public Guardian, but on this occasion I am not satisfied that the order he is seeking:
(a) is proportionate;
(b) is less restrictive in terms of DT's rights and freedom of action;
(c) respects DT's rights, will and preferences;
(d) warrants public interference in his private and family life; or
(e) is in his best interests.
The facts
DT was born in 1943 and used to be a salesman for Prudential Insurance. He has a history of anxiety and depression and retired on medical grounds when he was 44. He subsequently undertook various ventures on a self-employed basis, one of which was selling homebrew equipment.
DT and his wife originally lived in Essex and moved to Lowestoft, Suffolk, after he retired. He is now a resident in a care home on the north Norfolk coast.
His wife was born in 1946. They married when she was eighteen, and she left him, reluctantly, though on the advice of Suffolk Social Services, when he went through a particularly self-destructive phase in 2006. She lives on her own in a small, one-bedroom apartment in Chelmsford.
They have three sons, all of whom live in Essex:
(a) IT, who was born in 1967, and is an information technology consultant;
(b) PT, who was born in 1969, and is an information technology manager; and
(c) MT, who was born in 1972, and is a company director.
DT has dementia, which is caused by a combination of:
(a) vascular disease;
(b) an acquired brain injury; and
(c) chronic alcoholism.
His head injury occurred in 2006, when he fell down a flight of stairs and fractured his skull, causing a haemorrhage in the right frontal region of the brain.
On 23 July 2007 he executed EPA, in which he appointed his sons jointly and severally to be his attorneys, with general authority to act on his behalf in relation to all his property and affairs.
The EPA was registered by the Office of the Public Guardian ('OPG') on 26 September 2011.
The application
On 26 June 2014 the Public Guardian submitted an application to the court, in which he sought the following orders:
"The applicant makes this application and asks for a declaration as to DT's mental capacity to make decisions in relation to a matter or matters concerning his financial affairs.
In the event that the court declares that DT lacks mental capacity, an order under Schedule 4 paragraph 16(2)(b)(ii) of the Mental Capacity Act 2005 directing IT, PT and MT to provide within 28 days full detailed accounts with supported documentation to the Public Guardian for their dealings with the management of DT's property and financial affairs from 26th September 2011 to the date of the order.
Should IT, PT and MT fail within 28 days to provide satisfactory accounts then the applicant seeks and order under Schedule 4 paragraph 16(4)(g) and sub-paragraph (5) directing the Public Guardian to revoke the EPA and to cancel the registration of the EPA made by DT.
An order directing that Suffolk County Council be invited to make an application for appointment as deputy to manage DT's property and affairs."
The application was accompanied by a witness statement made by Sonya Hanson, an investigations officer with the OPG, who said that:
(a) On 14 June 2013 Suffolk County Council had contacted the OPG expressing its concern about arrears of care home fees, which at that time amounted to £19,624.
(b) IT responds to all attempts at contact by Suffolk County Council by asking questions and is underpaying DT's care home fees by £100 a week.
(c) DT and his wife are joint owners of the former matrimonial home in Lowestoft, which is currently let at a rent of £550 per month. The rent is paid directly into his wife's account.
(d) On 21 May 2014 Suffolk County Council confirmed to the OPG that it would be willing to act as DT's deputy for property and affairs.
The Court of Protection Visitors' reports
There are two kinds of Court of Protection Visitor:
(a) Special Visitors, who are registered medical practitioners and have a special knowledge of, and experience in, cases of impairment of or disturbance in the functioning of the mind or brain: Mental Capacity Act 2005, section 61(2); and
(b) General Visitors, who need not have a medical qualification: section 61(3).
As is standard practice in any safeguarding investigation, the Public Guardian asked a Court of Protection General Visitor to visit DT and in her report of the visit dated 10 August 2013 the Visitor, Diana Gordon, said:
"I spoke to the client and put to him the questions that required a response for the investigation. With regard to a general opinion about the EPA, the client was fully aware that his sons were jointly responsible and said he was very happy with the arrangement. He said they were 'good lads'. It was evident the client considers his estranged wife to be the problem and says she is taking his money. He was knowledgeable about his income but complained that it was going into her pocket. He believes his sons to be in a difficult position because she is their 'Mum'. He feels he is in a 'Catch 22' situation because of that.
Because there was uncertainty whether DT still had capacity to make a number of specific decisions relating to the management of his property and financial affairs, the Public Guardian commissioned a Court of Protection Special Visitor, Dr Rajaratnam Thavasothy, to examine DT. It was not the easiest of interviews and in his report dated 31 March 2014, Dr Thavasothy described it as follows:
"I visited DT on 24.03.14. … Staff warned me that he could scream at me and would not engage and, even if he does engage, it is likely he would not engage for more than a few minutes. At my request the staff had informed him of my visit and the purpose of my visit.
I assessed DT in a large room to which he walked unsteadily with the help of staff and sat in a chair. He was well dressed with clean clothes. He was kempt. The staff left him with me and, as I introduced myself, he understood the purpose of my visit and immediately shouted, "I wanted my sons to have the power of attorney, I don't want my wife to be involved." I then asked him what he meant by the power of attorney and he became extremely hostile and shouted again reasserting that his wife should not be involved. I distracted him by talking about his interest in films. He then talked at length about film actors from the 1960s to the 1980s, often repeating the same statement over and over again. After diverting his attention I thought I could proceed with the mental state examination, but as soon as I started assessing his mental state, he would scream at me, shouting loudly to the point that staff came into the room to make certain that I was alright. After the staff left I once again distracted him by talking about his various interests, and when I recommenced the mental examination, he once again started screaming and shouted repeatedly that he had had 'enough' and wanted me to leave. The staff arrived and I suggested that they could take him out, as he was demanding cigarettes, and that I would see him after he had smoked his cigarette.
When I recommenced the mental state examination, he shouted that he did not wish his wife to be involved and that he wanted his sons to have the power of attorney. When I asked him what he understood about the power of attorney, he once again became very angry, but later I was able to elicit that he wished to convey that all his finances should be managed by his sons. He stated that he trusted them implicitly and did not wish anyone else to be involved. He stated clearly "of course I am happy for my sons to have the power of attorney. My wife does not have the power of attorney." When I asked him how much money he has, he shouted "I don't know. The boys have the money and give me whatever money I need. I don't have to go out anywhere." As he screamed, ordering me out of the room, I had to terminate the assessment.
Apart from noting that he becomes impulsively aggressive with a very low level of tolerance, and often became frustrated when he found it difficult to answer any question, I did not find any evidence of depression or elation of mood. Though I could not conduct a mini-mental state examination, as he became angry, I am certain that he does present with cognitive deficits which add to his frustration when he finds it difficult to answer simple questions. His long term memory was, however, very good when he detailed the private lives of film stars from films he has seen in the past.
Conclusion
DT suffered dementia which is due to several factors. There is evidence of vascular cause as well as brain damage following a head injury and it is likely that chronic alcoholism has contributed towards the cognitive defects. The brain scan had shown evidence of brain damage with particular focus on the frontal lobe which is involved in behaviour and aggression. It is likely that his impulsive aggressive behaviour is due to the damage to the frontal lobe.
In spite of the diagnosis of dementia, he still has the ability to indicate who should have the power of attorney. He has asserted strongly his view that his sons should continue to have the power of attorney and manage his personal and financial affairs.
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