This is a Court of Protection case Re DP (Revocation of Lasting Power of Attorney) 2014, published under the President’s Guidance that any Court of Protection decision of this kind should be published.
It also serves as another helpful reminder that being appointed as an Attorney for someone who lacks capacity is a responsibility that comes with rules and obligations that the Attorney ought to make themselves familiar with, and is not a licence to dip into that person’s pockets or bank accounts.
In this case, the woman, DP, had appointed her former gardener as her Attorney in a Lasting Power of Attorney whilst she had capacity. He was then entitled to manage her affairs, and in many regards, he did this well. He was able to identify that she had been wrongly advised to switch a Legal and General Policy to an Aviva one, and get her compensation worth £38,000 for this.
Unfortunately, that good deed was somewhat undone by the Attorney then making a cash gift to himself to the value of £38,000, and also paying himself a salary for being the Attorney (An LPA can authorise the payment of a salary, but if, as here, it is silent then the Attorney can only claim legitimate and evidenced out of pocket expenses), also withdrawing money to pay for his wife’s motability scooter and weekly amounts of £55 to pay for the upkeep of it.
It is no great surprise that the Court, having investigated this matter carefully, concluded that the Attorney had exceeded their powers and the LPA should be set aside and a Court appointed deputy have the power of attorney to run the estate.
[Underlining mine – as it makes plain what an Attorney is to do if they WANT to use the person’s estate in this way, which is to get permission from the Court of Protection first]
- It is unusual for the OPG to receive referrals about an attorney’s conduct from two completely unrelated sources. In this case concerns were initially raised by Oxleas NHS Trust more than a year before Aviva alerted the OPG to the attorney’s suspicious behaviour in seeking to transfer the balance on DP’s investment bond into an account in his own name by means of a gifting arrangement.
- By making a gift of £38,000 to himself, JM contravened the provisions of section 12 of the Mental Capacity 2005, which sets out the limited circumstances in which an attorney may make gifts to persons, who are related to or connected with the donor, including himself. In order to have made a gift of this magnitude, he should have applied to the Court of Protection for formal authorisation pursuant to section 23(4) of the Act.
- Regardless the inherent artificiality of his claim for remuneration at a rate of £20 a day for 365 days’ house clearance and rubbish removal and £20 a week for 52 weeks’ gardening, JM contravened his authority by awarding himself a salary. Section 7 of the LPA, ‘About paying your attorneys’, was left blank by DP. The guidance to that section states: “You can choose to pay non-professional attorneys for their services, but if you do not record any agreement here, they will only be able to recover reasonable out-of-pocket expenses.” JM had no authority to charge for his services under the LPA itself and, if he wished to receive a salary, he should have applied to the Court of Protection for directions under section 23(3)(c) of the Act, whereby the court can authorise an attorney’s remuneration or expenses.
- By failing to keep proper accounts and financial records, he was in breach of his fiduciary duties as an attorney.
- I was unmoved by JM’s suggestion that, if the LPA is revoked, he will be unable to afford the Motability vehicle and will no longer be in a position to visit DP and take her on outings. The purpose of the Motability scheme is to enable someone who is in receipt of Disability Living Allowance (in this case, JM’s wife) to use the mobility component in their DLA to lease a vehicle. I do not understand why JM’s wife cannot apply her mobility component for the purpose for which it was intended and I am surprised that, having received a substantial gift of £38,000 from DP’s estate as recently as November 2012, JM should have insufficient resources to keep up the payments on the vehicle.
- At the end of his witness statement JM said that the police had concluded that there was no case to answer, and he asked why he was still being investigated by the OPG.
- There are significant differences between a police investigation and an investigation conducted by the OPG. When the police investigate an alleged crime, they need to consider whether there is sufficient evidence to present to the Crown Prosecution Service (‘CPS’) to guarantee a realistic prospect of conviction, which in this case would have been on a charge of theft or fraud by abuse of position. The CPS would have had to prove that JM was aware that he was acting dishonestly and they would have had to prove this ‘beyond reasonable doubt’, the standard of proof in criminal proceedings. The decision not to prosecute him simply means that the CPS was not totally confident that it would be able to prove JM’s guilt so as to ensure a conviction. It does not imply that his behaviour has been impeccable.
- By contrast, an investigation by the OPG is concerned primarily with establishing whether an attorney or deputy has contravened his authority under the Mental Capacity Act 2005, or has acted in breach of his fiduciary duties under the common law of agency, or has behaved in a way that is not in the best interests of the person who lacks capacity. The standard of proof, ‘on the balance of probabilities’, is lower than the criminal standard.
- Like the police and the CPS, the OPG carries out a comprehensive sifting process, and the Public Guardian will only make an application to the Court of Protection in cases where he has good reason to believe that an attorney or deputy has acted inappropriately and that it is in the best interests of the person who lacks capacity for the attorney or deputy to be discharged.
- In fact, the OPG make comparatively few applications to the court. According to the Office of the Public Guardian Annual Report and Accounts 2012-2013, at pages 6 and 7, the Public Guardian received a total of 2,982 safeguarding referrals during the financial year 2012/13. 728 (24%) were referred for full investigation and the Public Guardian approved 480 investigation case recommendations. Of these, only 136 resulted in an application to the Court of Protection for the removal of an attorney or deputy.
- Having regard to all the circumstances, therefore, I am satisfied that JM has behaved in a way that has both contravened his authority and has not been in DP’s best interests.
- Accordingly, I revoke the LPA under section 22(4)(b) of the Mental Capacity Act 2005 and direct the Public Guardian to cancel the registration of the instrument under paragraph 18 of Schedule 1 to the Act. I also direct that a member of the panel of deputies be invited to make an application to be appointed as deputy to manage DP’s property and affairs.