Failed attempt to revoke an Enduring Power of Attorney

As Senior Judge Lush remarks at the beginning of Re DT (2015) it is fairly unusual to dismiss the application of the Public Guardian to revoke an Enduring Power of Attorney. You can often learn a lot more from a single unsuccessful application than you can from reading dozens of successful ones.

http://www.bailii.org/ew/cases/EWCOP/2015/10.html

In this case, the man DT had dementia, but had previously made an Enduring Power of Attorney giving control of his financial affairs to his three sons.

DT and his wife are separated, although this separation has not become a judicial separation or a divorce, and she of course remains the mother of the three sons, who are all adults.

The Public Guardian became concerned about the running of DT’s affairs as a result of two substantial issues:-

1. The care home fees were in substantial arrears (by the time of the hearing to the tune of nearly £70,000)

2. DT had been expressing very strong views about his wife getting his money and that his money was being spent on her.

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.

There were clearly difficulties with DT’s functioning, particularly his temper control, but bearing in mind that the starting point of the Mental Capacity Act 2005 is to assume that a person has capacity unless demonstrated otherwise, this appears sufficient information to glean that DT – (a) understood what a Power of Attorney was (b) understood that he had one (c) understood that his 3 sons had the Enduring Power of Attorney and (d) was happy with this.

41. The Public Guardian asked the Court of Protection Special Visitor to assess whether DT had the capacity to revoke the EPA himself, and the Visitor confirmed emphatically that he did have capacity. Although, strictly speaking, this information was unnecessary for the purpose of deciding whether to revoke the EPA, I cannot ignore it.
42. If one thing is certain in this case, it is that DT is perfectly satisfied with his sons’ management of his property and financial affairs under the EPA, and he has no desire to revoke their appointment as attorneys.
43. Having regard to the contents of the Special Visitor’s report, and in particular the frustration and anger expressed by DT when questions concerning his sons’ management of his affairs were raised, I consider that, if the court were to revoke the EPA, it would cause significant distress to him, which cannot possibly be in his best interests.
44. I am reminded of the remarks of Her Honour Judge Hazel Marshall QC in Re S and S (Protected Persons) [2008] COPLR Con Vol 1074, where she held that, if P expresses a view that is not irrational, impracticable or irresponsible, “then that situation carries great weight and effectively gives rise to a presumption in favour of implementing those wishes, unless there is some potential sufficiently detrimental effect for P of doing so which outweighs this.”
45. She went on in to say in paragraph 58 of her judgment:
    

    “It might further be tested by asking whether the seriousness of this countervailing factor in terms of detriment to P is such that it must outweigh the detriment to an adult of having one’s wishes overruled, and the sense of impotence, and the frustration and anger, which living with that awareness (insofar as P appreciates it) will cause to P. Given the policy of the Act to empower people to make their own decisions wherever possible, justification for overruling P and “saving him from himself” must, in my judgment, be strong and cogent. Otherwise, taking a different course from that which P wishes would be likely to infringe the statutory direction in s 1(6) of the Act, that one must achieve any desired objective by the route which least restricts P’s own rights and freedom of action.”

46. There is nothing irrational, impracticable or irresponsible in DT’s wish that his sons should continue to act as his attorneys, and I am not satisfied that their conduct has had a sufficiently detrimental effect on DT or his finances to justify overriding his wishes.

There was a quirky side issue, which has a direct bearing for Local Authorities. The Public Guardian had asked that the Director of Adult services at Suffolk County Council become the deputy and manage DT’s financial affairs.  The Director had politely declined.

Why would that be, you might ask? Well it is this. There is a fixed fee for being a public authority Deputy and that fixed fee bears no relation to what it would cost the LA to actually do the job. The LA gets £700 for the first year, and £585 a year after that.  (Bear in mind that a deputy from a family does it for nothing, but Local Authorities are cash-strapped) If you are appointing a deputy from the private sector, you are paying £200 AN HOUR for someone very experienced and £111 AN HOUR for a trainee solicitor.

50. Section 19(3) of the Mental Capacity Act 2005 states that “a person may not be appointed as a deputy without his consent,” and I am disappointed that, having agreed to act as deputy, Suffolk County Council, subsequently withdrew its consent. This has an enormous impact on the costs involved.
51. Public authority deputies are allowed remuneration in accordance with Practice Direction 19B, “Fixed Costs in the Court of Protection.” The rates of remuneration have remained static for the last four years, since 1 February 2011. Understandably, this is a bone of contention for cash-strapped local authorities, and partly accounts for an increasing and alarming trend in which councils are refusing to take on deputyship work.
52. If Suffolk County Council were appointed as DT’s deputy, it would be entitled to an annual management fee of £700 for the first year and £585 for the second and subsequent years.
53. At the hearing IT asked about the likely costs of a panel deputy, and I suggested that they would be in the region of £200 an hour. Any meaningful calculation is, of course, more complicated than that.

The costs of appointing a deputy from the private sector (the Court not being able to appoint someone from the LA if they object) would of course come out of DT’s finances. The Court had to think about whether that was proportionate, given that the 3 sons were doing this task for nothing and that DT was happy with them.

[The Court had been satisfied that the arrears for the nursing home would be paid off and why they had arisen]

59. As regards the nature, extent and complexity of the affairs that need to be managed and administered, DT’s former matrimonial home will be sold shortly. His share of the gross proceeds of sale will be £70,000. His share of the net proceeds of sale may be a couple of thousand pounds less than that and will be extinguished by the payment of his debt of £69,000 to Suffolk County Council. His remaining capital assets – a half share of a Scottish Widows ISA and a half share of the balance on a Halifax account – amount to just under £8,000. His income is roughly £17,000 a year.
60. As can be seen from the fixed costs regime described above, generally speaking, costs are higher during the first year immediately following a deputy’s appointment than they are in the second and subsequent years. DT is likely to remain living in an institutional environment for the rest of his life. The family are not at loggerheads with one another and there is no evidence of dishonesty, which would warrant interfering with DT’s Article 8 rights for the prevention of crime.
61. The average of Bands A to D in National Band One is a charge-out rate of £172 an hour and, if one reckoned that a fairly straightforward case, such as this, would involve at least twenty four hours’ work during the first year (in other words, an average of just two hours a month), one is looking at a baseline of £4,128 to which should be added:(a) VAT (£825.60);

    (b) the cost draftsman’s fee (say £335) plus VAT (£67);

    (c) the premium payable in respect of any security bond required by the court; in this case a single one-off premium of £98, not recurring annually;

    (d) the detailed assessment fee of £225 (which applies where the costs exceed £3,000 including VAT and disbursements);

    (e) the OPG’s initial deputy assessment fee of £100; and

    (f) the OPG’s annual deputy supervision fee of £320.

62. It is likely, therefore, that in this case, a panel deputy’s costs would be roughly £6,100 during the first year of appointment, and approximately two thirds of that sum in the second and subsequent years. By comparison, DT’s attorneys charge nothing. They don’t even claim travelling expenses when they go and see him, because they visit him as his sons, rather than as his attorneys.
63. I consider that, in this case, the employment of a panel deputy to manage DT’s property and financial affairs, even if it were necessary (which it is not), would be a disproportionate drain on his limited resources.
64. Considering all the relevant circumstances and, in particular, the extent to which DT retains capacity and his clear expression of his present wishes and feelings on the matter, I dismiss the Public Guardian’s application to revoke the EPA.