This article focuses on the Office of the Public Guardian’s application to revoke a Lasting Power of Attorney (LPA) as the Attorneys’ behaviour had contravened their authority and they had not acted in the patient’s best interests.
The Official Judgement of this case can be found on the Bailii Database for England and Wales Court of Protection Decisions.
Background:
EG was diagnosed with Vascular Dementia. EG had four children, a daughter, GB and a son, SG as well as two younger sons. EG resided on her own as her husband had passed away and GB was EG’s primary carer. On 10 October 2012, an LPA for property and financial affairs and an LPA for health and welfare affairs were executed, in which:
- GB and SG were appointed as Joint and Several Attorneys;
- A replacement Attorney was not appointed; and
- EG’s two younger sons would be notified when an application was made to register the LPAs.
On 3 December 2012, an application to register the LPAs was submitted to the Office of the Public Guardian (OPG).
Application Proceedings:
On 18 August 2014, the OPG applied for Orders in the following terms:
“An Order under Section 22(4)(b) of the Mental Capacity Act 2005 for the revocation and cancellation of the registered property and financial affairs LPA made by EG”
And…
“An Order directing that a member of the Panel of Deputies be approached and invited to make an application for appointment as Deputy to make decisions on behalf of EG in relation to her property and affairs with the power to take such proceedings or steps as may be necessary to restore EG’s estate to the correct level.”
A Witness Statement also accompanied the OPG’s application. It was noted that GB had gifted funds from EG’s estate totalling £75,000.00, with £15,000.00 to herself and £20,000.00 to each of her three brothers. EG’s estate was reduced to £17,000.00.
Reference was made to a Mental Capacity Assessment that had been carried out on EG. It was stated that:
“GB insisted on asking EG whether she was happy to have given that money to her children. She told her that she had £85,000 on her account and EG did not know she had that much money. GB asked EG if she would give that much money to her and her ‘boys’, to which EG replied: “I wouldn’t have anything left if I did! … I’d have to think about it!”…the decision to pay four lump sums of money to EG’s four children amounting to £75,000 was not in her best interests. In light of GB and her financial difficulties, and EG’s dementia… this matter was passed to the Office of the Public Guardian for full investigation.”
Objections Proceedings:
On 18 September 2014, GB disputed the OPG’s application. GB outlined the issues she had faced in respect of her finances which had led to her gifting monies from EG’s estate. A Witness Statement was prepared by GB and the salient points were:
“On 9th April…GB and EG discussed with GB’s predicament and asked if EG could help GB out. EG was shown her bank statements which she always had access to…EG agreed to help GB and wanted GB’s brothers to be treated equally.”
SG also filed a Witness Statement to object to the OPG’s application, this read:
“I feel that GB and I have always acted in EG’s best interests…this led to financial hardship for GB…SG and GB asked EG if she would consider lending some money…EG agreed to the request but said that all four siblings should be treated equally…gifts of £20,000 were made to SG, GB and the two brothers…”
The London Borough of Bromley acknowledged the OPG’s application and stated that it supported the same.
Witness Statements & Evidence:
Additional Witness Statements and evidence were filed. Claire Bennett, a Counsellor and Psychotherapist supported the OPG’s application however she stated:
“The OPG requests London Borough of Bromley be invited to make an application to become the Deputy for EG for property and affairs…”
The London Borough of Bromley informed that they had been alerted to EG’s case due to the Metropolitan Police’s concerns. An assessment was undertaken by Social Services whereby it was discovered that £75,000.00 had been gifted to EG’s children. Social Services referred EG’s case to the OPG and it was agreed that the gifted monies needed to be treated as a Deprivation of Assets.
On 25 January 2015, GB filed a further Witness Statement which addressed EG’s capacity to make gifts to GB, SG and the two brothers. GB stated:
“To assume EG’s mental capacities were the same on 9 April 2014 as they were when her first wandering incident occurred…would be to assume that she had always been wandering since the onset of dementia but my mother had never come to the attention of social services before this date…EG did agree to the money being given but if the Court decides that it must be paid back…we would do so immediately. GB would not be able to pay it back all at once…GB would need to get a job so that she could pay EG back. This would mean that GB would no longer be able to care for EG.”
Final Hearing & Decision:
On 3 February 2015, the Final Hearing took place between the OPG, GB, SG and the London Borough of Bromley before Senior Judge Lush.
Senior Judge Lush stated that the gifted monies exceeded the Attorney’s authority to make gifts under Section 12(2) of the Mental Capacity Act 2005. In this respect, GB and SG contravened their authority to act as EG’s Attorneys. GB and SG also breached their fiduciary duties as Attorneys for EG. Paragraph 7.60 of the Mental Capacity Act Code of Practice states:
“A fiduciary duty means Attorneys must not take advantage of their position…Decisions should always benefit the donor, and not the Attorney. Attorneys must not profit or get any personal benefit from their position, apart from receiving gifts where the Act allows it, whether or not it is at the donor’s expense.”
Senior Judge Lush referred to a Mental Capacity Assessment and Best Interests Report that had been compiled by the London Borough of Bromley in August 2014. It was concluded that EG did not have capacity to consent to gifts and that she was not aware that an Attorney or LPA had been appointed.
Senior Judge Lush confirmed that:
(a) the Attorneys have behaved in a way that contravenes their authority and is not in EG’s best interests; and
(b) EG lacks capacity to revoke the LPA.
It was concluded that the LPA would be revoked on behalf of EG. Senior Judge Lush directed that the London Borough of Bromley would be appointed as Deputy for property and affairs for EG.
If you have any questions or queries in relation to this blog please contact Julianne Brown (julianne.brown@clarionsolicitors.com or 0113 336 3320) or the Clarion Costs Team on 0113 246 0622.
