The Public Guardian v VT
| Jurisdiction | England & Wales |
| Judge | Senior Judge Lush |
| Judgment Date | 10 December 2014 |
| Neutral Citation | [2014] EWCOP 52 |
| Docket Number | Case No: 12295645 |
| Court | Court of Protection |
| Date | 10 December 2014 |
[2014] EWCOP 52
COURT OF PROTECTION
In The Matter Of Pst
First Avenue House
42–49 High Holborn
London WC1V 6NP
Senior Judge Lush
Case No: 12295645
Nadia Dhillon for the Public Guardian
VT in person
Hearing date: 3 December 2014
This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney (' LPA') for property and financial affairs on the ground that the donee of the power has behaved in a way that contravenes her authority or is not in the donor's best interests.
The background
The donor, PST, was born in 1934 in what is now Sri Lanka but was then Ceylon. She used to teach English.
She has chronic paranoid schizophrenia and for the last six years has been compulsorily detained in various hospitals in the Home Counties under the Mental Health Act 1983. She is currently in a secure unit in Hertfordshire.
Her daughter, VT, was born in 1958, and lives in Maidenhead. She has BSc and MSc degrees in biochemistry and immunology, but has been unemployed on a long-term basis.
On 21 February 2010 PST executed an LPA for property and financial affairs and an LPA for health and welfare, in which she appointed her daughter to be her sole attorney and a male cousin, who was born in 1932 and lives in Sri Lanka, to be the replacement attorney.
The LPAs were drafted by her daughter and PST's capacity to create them was assessed and certified by a former work colleague who had known her for over thirty years.
When I say that the LPAs were drafted by her daughter, I mean that VT inserted a number of restrictions and conditions and guidance notes into the standard prescribed forms. For example, in the LPA for health and welfare, one of the wishes that PST purported to express in the guidance section was that "I want to live within 10 miles of my daughter's home if ever I need hospital treatment."
The LPA for property and financial affairs contained the following condition:
"I do not want any public authority or body or their employees or contractors to handle my money, financial affairs or property at any time and I do not want them to obtain any information about these at any time."
On reflection, this provision should have been severed from the LPA before it was registered, because it is ineffective as part of an LPA. I shall return to this later at paragraphs 34 to 37.
An application was made to the Office of the Public Guardian ('OPG') to register the LPAs and they were registered on 24 August 2011.
The OPG's investigation
On 22 October 2012 Windsor & Maidenhead Community Mental Health Team contacted the OPG to express their concerns about the attorney's behaviour. She had failed to provide her mother with toiletries and new clothing, despite repeated requests to do so, and had been evasive about her mother's finances.
On 31 October 2012 the OPG wrote a letter to the attorney containing a list of nine questions. She replied on 16 November 2012 demanding to know who the whistleblower was who had raised these concerns. She said her mother did not want anyone knowing about her finances and suspected that the enquiry was being made by 'crooks.' She complained at length about the poor quality of care provision in the hospital, but at no point did she answer any of the nine questions the OPG had asked about her mother's finances.
The OPG commissioned a visit by one of the Court of Protection General Visitors, Barbara Joyce, who saw PST on 19 November 2012. In her report dated 20 November 2012 the Visitor said:
"I spoke to Dr Vermeulen, consultant psychiatrist, who told me that PST had been deemed as not having capacity to give consent to treatment for drug administration under the Mental Health Act. This is under annual review. She remains detained under section 3 to protect her from her daughter. He considers that it is unlikely that she had the capacity to understand the LPAs at the time when she signed them."
In response to a printed question on the visit form — "Is the attorney acting in the best interests of the client?" — the Visitor said:
"I do not consider that she is. Her constant allegations into the care provision at [the hospital] have taken staff away from their primary caring role and affected morale at the service. It has also put her mother's placement in jeopardy. The allegations that the attorney has made have ranged from informing her mother that [staff] are trying to poison her, encouraging her mother to refuse medication, encouraging her mother to sign cheques and urging her to do so until she cried, taking in and feeding food to her mother with visible signs of mould on, speaking in Tamil and excluding staff from what she has said to her mother, allegations of physical assault on her mother by staff, calling staff racist, they have tried to kill her mother, staff are evil and that they have beaten her mother black and blue."
The Visitor concluded her report by saying, "I consider that the Public Guardian should seek to remove the attorney as soon as possible."
The Public Guardian's initial application to court
On 12 March 2013, the Public Guardian applied to the court for the following orders:
1. An order under section 23(3)(a) of the Mental Capacity Act 2005 directing VT to account to the Public Guardian for her dealings under the registered LPA for property and financial affairs for PST from 24th August 2011 to the date of the order.
2. An order under paragraph 22(4) of the Mental Capacity Act 2005 for the revocation and cancellation of registration of the aforesaid LPA made by PST if the attorney fails to submit satisfactory accounts and full supporting documentation within 28 days of the order.
3. An order directing that a panel deputy be invited to make an application for appointment as deputy to manage PST's property and affairs.
On 18 March 2013 I made an order requiring:
(a) the OPG to serve the application on the attorney within 7 days;
(b) the attorney to respond within 28 days of being served; and
(c) the matter to be referred back to a judge on the first available date after 30 April 2013.
On 16 April 2013 the attorney filed an acknowledgment of service, in which she objected to the application. She said:
"I oppose the application as there are no real grounds to make an enquiry and the application is malicious. [PST's ] LPA says specifically that she does not want the local authority knowing her private affairs."
On 24 June 2013 District Judge Mainwaring-Taylor made an order listing the matter for an attended hearing before him on 26 July 2013, and at that hearing, which was attended by a representative from the OPG and the respondent in person, he made the following order:
1. The respondent to notify the Public Guardian with such details of the financial affairs of PST as he shall require by 4pm on 24th August 2013.
2. The Public Guardian is not to disclose the said details to any third party without further order of the court.
3. Leave to the Public Guardian to restore the case for further direction until 4pm on 31st October 2013 after which the proceedings shall be automatically dismissed without further order.
On 23 August 2013 VT sent five emails to the OPG with various attachments including letters from PST, photographs of her, bank statements and a spreadsheet.
The Public Guardian did not apply to restore the case before the deadline and the proceedings were automatically dismissed.
The revived application
Almost twelve months later, on 21 October 2014, the Public Guardian filed a new application for the following orders:
1. An order under section 22(4) of the Mental Capacity Act 2005 for the revocation and cancellation of registration of the registered LPA for property and financial affairs appointing VT as sole attorney.
2. An order directing that a member of the panel of deputies be invited to make an application to make decisions on behalf of PST in relation to her property and financial affairs.
The application was accompanied by a witness statement made by Rachel Bloore, a member of the investigations team at the OPG, who said:
"I have analysed the statements for the HSBC account for the period 24th August 2011 to 31st July 203. The statements show a total income of £11,546.90 and a total expenditure of £13,188.11. This expenditure includes a sum of £5,887.87 paid to various credit card companies, £2,150 paid to the attorney, and £900.46 paid to 'European Patent'. The explanations provided by the attorney explain only utility bills and list all other expenditure as ' miscellaneous'.
It is the Public Guardian's position that the attorney has not fully accounted for her management of PST's financial affairs. From a total expenditure of £13,188.11 the attorney has described £8,947.33 as ' miscellaneous' and has not provided any evidence in support of the funds having been used in PST's best interests.
The Public Guardian requests that the court consider the revocation and cancellation of PST's registered LPA for property and affairs. The Public Guardian also requests that the court consider inviting a member of the panel of deputies to make an application to be able to make decisions on behalf of PST in relation to her property and financial affairs."
On 30 October 2014 I made an order listing the matter for hearing on 3 December 2014 and setting out a timetable for:
(a) the OPG to serve the application;
(b) VT to respond;
(c) an officer of the court to approach a panel deputy; and
(d) the panel deputy to confirm that he or she was willing to act.
On 7 November 2014 Jacqueline Almond of IBB Solicitors, Chesham, Buckinghamshire, filed a COP4 deputy's declaration saying that she was willing to be appointed...
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