Re JI (revocation of lasting power of attorney) 2014
This was a Court of Protection decision by Senior Judge Lush, who I’ve reported on a lot and who is a Judge that always does a good judgment.
It was a case of alleged financial abuse of a vulnerable person by a member of their family appointed to look after their money for them. I know that the Court of Protection has its critics – myself included sometimes, but without them, this woman would have been bled dry by this relative, her own daughter.
JL was born in 1938 and lives in her own home in Essex. JL has Alzheimer’s disease.
On 8 October 2013 she executed a digital LPA for property and financial affairs and, as far as I am aware, this is the first occasion on which the court has considered a digital LPA in the context of an application to revoke the appointment of an attorney.
The LPA was drawn up by JL’s daughter AS online and, perhaps not surprisingly, JL appointed AS to be her sole attorney. She did not receive any independent advice about the creation of the LPA, though AS claims that she fully explained the document to her mother before she signed it.
A friend of the family witnessed JL’s signature and acted as the certificate provider. The function of the certificate provider is to certify that:
(a) the donor understands the purpose of the LPA and the scope of the authority conferred under it;
(b) no fraud or undue pressure is being used to induce the donor to create the LPA; and
(c) there is nothing else which would prevent the LPA from being created by the completion of the prescribed form.
Over a period of time, it became apparent that JL was living in squalor and not having her financial needs met – although she had capital funds to provide for her, she was not being given the money she needed.
(a) Essex County Council reported its concerns to the OPG on 24 April 2014.
(b) Copies of JL’s bank statements revealed that there had been a number of excessive and uncharacteristic withdrawals from her funds.
(c) From 18 January to 9 April 2014 there had been twenty-five cheque withdrawals ‘paid to cash’ totalling £4,290. These payments averaged £171 and were withdrawn every few days.
(d) Over the same period JL’s only capital asset other than her home had halved in value to £10,669 and, at the current level of expenditure, her funds would be entirely depleted within nine months.
(e) The investigator at the OPG spoke over the phone to JL’s social worker, Sharon Morris, who stated that a man, who had recently been released from prison, had offered JL £100 to perform a sexual act for him.
(f) JL had told Sharon Morris that her attorney kept her so short of money that she considered prostitution as the only way of resolving the problem.
(g) In particular, JL said she needed the money so that she could pay the train fare from Sheffield for her son to visit her (£100) and to compensate him for the overtime he would otherwise have earned but for the visit (£80).
(h) AS, on the other hand, claimed she gave her mother £600 a month spending money.
(i) JL was paying £32 a month for her daughter’s T-Mobile phone contract, but many other bills were left unpaid and she owed £946 to Npower.
The daughter objected to being removed as an Attorney and for Essex to be appointed in her stead. The Court heard evidence and had to apply the tests of the Mental Capacity Act.
I am, indeed, satisfied that AS has behaved in a way that contravenes her authority and is not in JL’s best interests.
(a) She admits that she failed to keep proper accounts and financial records.
(b) Her explanation for the dramatic increase in JL’s expenditure was “there is no point in her being the wealthiest woman in the graveyard.”
(c) She profited from her position by using her mother’s money to pay her own mobile phone bill.
(d) There is evidence that she placed JL under pressure regarding this matter.
As this had been a Lasting Power of Attorney set up online, with no independent person explaining things to JL (who had capacity at that time – or at least, one hopes so – part of the danger of doing it online is that she doesn’t necessarily meet with anyone independent to confirm that), it becomes even more important that the Attorney who signs the document saying that it has all been explained to JL actually does this proper job of explanation. Otherwise it looks like a snow job.
I shall consider these reasons in a little more detail. First, AS admits that she failed to keep proper records and accounts. At the hearing she said she did not know she had to keep accounts and that she had not read the declaration in Part C of the prescribed form of LPA, which she had signed. It says:
“I understand my role and responsibilities under this lasting power of attorney, in particular:
I have a duty to keep accounts and financial records and produce them to the Office of the Public Guardian and/or to the Court of Protection on request.”
This admission is damning enough, but it gives rise to additional concern about the circumstances in which the LPA was created. If AS failed to read Part C, it makes it hard to believe her assertion that she had carefully read and explained to her mother the contents of Part A of the LPA – the part that the donor is required to complete.
AS’s retort that there was no point in her mother being the wealthiest woman in the graveyard is trite and misses the point. JL is far from being a wealthy woman and what funds she has should be applied for her benefit and in her best interests. She lives in squalor. When Social Services initially visited her on 1 July 2013 they observed animal faeces on the carpets from her dog and three cats. Her food had a layer of mould on it, but she was nevertheless reheating and eating it, and she had neither washed nor changed her clothes for six months.
[But hey, as long as the daughter’s mobile phone bill is getting paid, everything is fine, right?]
Finally, as regards AS exerting pressure on JL, in her witness statement dated 26 September 2014 JL’s social worker, Sharon Morris, said:
“JL has discussed concerns regarding her relationship with her daughter AS with me on several occasions. JL can get very anxious when at times she cannot contact her for days. She does not answer her calls or the door when she visits. On the occasions she does meet with her daughter she reports that she shouts at her and pressurises her for money.”
I have to say that from my own observation of AS’s demeanour at the hearing that she came over as forceful and persistent and I imagine it would be difficult for a lonely, vulnerable woman with a cognitive impairment to resist complying with her wishes and demands.
The Court, quite rightly, removed AS as an Attorney. It is always a shame when this sort of thing happens, because the best people to look after a vulnerable person and manage their finances are relatives, where possible. But it is vital that those relatives realise that their responsibility is to spend JL’s money on her, and meeting her needs, and not using their vulnerable mother as a personal piggy bank.
I am satisfied that (1) AS has behaved in a way that contravenes her authority and is not in JL’s best interests, and (2) JL lacks capacity to revoke the LPA herself, and I shall revoke the LPA for her.
With regard to the appointment of a deputy for property and affairs, I consider that it would be in JL’s best interests to appoint the authorised officer for property and affairs deputyships of Essex County Council as her substantive deputy. He is already acting as her interim deputy by virtue of my order of 10 June 2014 and JL has expressed a preference that he should continue to manage her funds.