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Tag Archives: enduring power of attorney

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.


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.


  1. 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.
  2. 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.
  3. 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.
  4. 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.”
  5. 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.”

  6. 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.


  1. 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.
  2. 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.
  3. 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.
  4. 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]

  1. 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.
  2. 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.
  3. 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.

  4. 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.
  5. 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.
  6. 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.


Being a deputy is not a licence to loot

A Court of Protection case has recently tackled the issue of a person with considerable financial means but no capacity to manage her affairs, and the deputies appointed by the Court having made extensive ‘gifts’ from her financial estate and seeking retrospective approval for them.

MJ and JM v The Public Guardian 2013

This was the background to the appointment of MJ and JM as deputies


9.       GM has vascular dementia, which was first formally diagnosed in 2007.

10.   On 25 August 2010 the court made an order appointing MJ and JM jointly and severally to be her deputies for property and affairs.

11.   The order required the deputies to obtain and maintain security in the sum of £275,000. The premium for the security bond, which is payable from GM’s estate, is £550 a year, and the purpose of the bond is to restore to GM’s estate any loss that may have arisen as a result of the wrongful acts or omissions of her deputies.

12.   Paragraph 2(c) of the order gave the deputies the following authority to make gifts:

“The deputies may jointly and severally (without obtaining any further authority from the court) dispose of money or property of GM by way of gift to any charity to which she made or might have been expected to make gifts and on customary occasions to persons who are related to or connected with her, provided that the value of each such gift is not unreasonable having regard to all the circumstances and, in particular, the size of her estate.”

The case sets out very clearly the parameters in which deputies can operate, particularly with regard to ‘gifts’  and ‘deputyship expenses’

  1. The scope of a deputy’s authority to make gifts
  1. Section 16(2)(b) of the Mental Capacity Act 2005 provides that the court may appoint a deputy to make decisions on behalf of ‘P’, which is the shorthand term used in the Act for the person who lacks capacity or to whom the proceedings relate.
  1. Section 16(3) states that the powers of the court under section 16 are subject to the provisions of the Mental Capacity Act 2005 and, in particular, sections 1 (the principles) and 4 (best interests).
  1. Section 16(4) provides that the court may “confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).”
  1. Section 18(1)(b) provides that the powers of the court under section 16 extend to making a gift or other disposition of P’s property.
  1. Paragraph 2(c) of the order of 25 August 2010 appointing JM and MJ as GM’s deputies defined the scope of their authority to make gifts in the following terms:

“The deputies may jointly and severally (without obtaining any further authority from the court) dispose of money or property of GM by way of gift to any charity to which she made or might have been expected to make gifts and on customary occasions to persons who are related to or connected with her, provided that the value of each such gift is not unreasonable having regard to all the circumstances and, in particular, the size of her estate.”

  1. Similar wording appears in almost every order appointing a deputy for property and affairs, and the intention of the court is that deputies should have the same powers to make gifts as attorneys acting under an Enduring Power of Attorney (‘EPA’) or a Lasting Power of Attorney (‘LPA’).
  1. It is important that deputies and attorneys should:

(a) realise that they have only a very limited authority to make gifts;

(b) understand why their authority is limited; and

(c) be aware that, in an appropriate case, they may apply to the Court of Protection for more extensive gift-making powers

  1. Deputyship expenses
  1. Section 19(7) of the Mental Capacity Act 2005 provides that:

“The deputy is entitled –

(a) to be reimbursed out of P’s property and affairs for his reasonable expenses in discharging his functions, and

(b) if the court so directs when appointing him, to remuneration out of P’s property for discharging them.”

  1. The Act distinguishes between two kinds of entitlement: the reimbursement of expenses, on the one hand, and remuneration, on the other. A deputy is entitled, as of right, to be reimbursed for the expenditure he incurs in carrying out his functions, though a ‘reasonableness test’ arises as to the amount he can actually recover.
  1. The Office of the Public Guardian publishes a booklet called A guide for Deputies appointed by the Court of Protection (OPG510), which is available in both hard copy and on the OPG website. Page 22 of this guide states as follows:

“Will I be reimbursed for my expenses?

The Act allows you to be reimbursed for reasonable expenses incurred when acting as a Deputy. Examples of expenses include telephone calls, travel and postage.

Expenses are not payment for your time spent while acting as a Deputy – this is called remuneration and can only be claimed if the Court order specifically states it. If you wish to receive remuneration you should ask the Court to consider this in your initial application.


The expenses you are entitled to claim and what is considered reasonable will vary according to the circumstances of each case. It depends on what you are required to do and also the value of the estate of the person who lacks capacity.

The OPG expects that you will only claim reasonable and legitimate expenses. If you claim more than £500 in expenses per year the OPG may require you to explain your expenses in detail and frequently.

If your expenses are considered unreasonable you may be asked to repay them, and in extreme cases the OPG may apply to the Court to cancel your appointment.”

So, in this case, what sort of “expenses” had been claimed?

£46,552.24 for ‘cars and computers’

Flick back – acceptable expenses £500 a year, and they went for nearly £50,000, out by several orders of magnitude.

It is no surprise that the Court considered that these were not ‘expenses’ at all, but the deputies making unauthorised gifts to themselves, and thus decided that they were obliged to refund GM’s estate with the money.

Let’s look at the gifts now

MJ personally had received ‘gifts’ from GM’s funds totalling £55,856  – including an £18,000 Rolex watch, a £16,000 ring, perfume, an Alexander McQueen handbag and £20,000 in cash.

JM personally had received ‘gifts’ from GM’s funds totalling £48,396.50, including a £17,000 Omega watch, two rings costing over £11,000, 2 Mulberry handbags and £20,000 in cash.

These were, of course, people who had been appointed by the Court to safely manage the estate of a very vulnerable woman and who had sworn an oath to do so properly.  I don’t think that I can actually find the words to describe how loathsome I consider their conduct to be, and I am amazed that the Judge was able to be as circumspect as she was.

They also made gifts of £62,500 to other friends and family members, all of whom seem to receive a Vivienne Westwood handbag, apart from one man who received a DerbyCounty season ticket.

GM had not been consulted about any of these ‘gifts’, nor had her wishes been explored by MJ and JM in any way.

  1. The Public Guardian’s position is that the deputies have made unauthorised gifts totalling £171,407.50 from GM’s estate to themselves and their immediate family.

The Public Guardian believes that this level of gifting by the deputies is excessive, not in the best interests of GM and is inconsistent with the deputies’ fiduciary duty of care. In addition, the deputies have exceeded the authority given to them to act on GM’s behalf in respect of her property and affairs and have exposed themselves to allegations of self-dealing.

In addition, the Public Guardian also questions if the deputies had the authority to spend a total of £46,553.14 in purchasing a car and computer each and then claim them as ‘deputyship expenses’. It is the Public Guardian’s opinion that the cars and computers are further unauthorised gifts which the deputies had no authority to make to themselves.

The Public Guardian has calculated that almost 44% of GM’s total assets have been disposed of by way of gifts made by the deputies to themselves and their family where they had no authority to do so. Therefore, the Public Guardian cannot recommend to the court that the gifts shown below can be approved retrospectively.





Gifted to immediate family


Gifted to MJ


Gifted to JM


Deputy ‘expenses’




Damn. Right

GM has £177,230.96 left in her estate

I don’t usually make comments about the individuals who appear in cases, over and above the judgments, but this particular case is making that rule of mine very hard to stick to. My opinion of these people, and it is merely a personal opinion based on the reading of the judgment, could not be much lower.

  1.  I do not accept that the gifts they made were in GM’s best interests. They are completely out of character with any gifts she made before the onset of dementia. There was no consultation with her before they were made and there was no attempt to permit and encourage her to participate in the decision-making process, or to ascertain her present wishes and feelings.
  1. Nor do I accept the applicants’ argument that they believed that the order appointing them allowed them to make gifts on such an extensive scale. They should have been aware of the law regarding their role and responsibilities. Ignorance is no excuse.
  1. The fact that GM’s remaining assets were in the names of one or other of the applicants, rather than in GM’s name, is a further example of what is, at best, ignorance, and, at worst, stealth.
  1. I realise that MJ and JM are the only visitors that GM receives, but this does not give them a licence to loot, and I was unimpressed by the veiled threat that, if the court were to remove them as deputies, they would find it difficult to continue seeing GM.
  1. If they had made a proper application for the prospective approval of gifts, I would possibly have allowed them to make gifts to themselves and their families to mitigate the incidence of IHT on GM’s death, but only if they had been the residuary beneficiaries under her will.

The applicants were seeking approval of gifts and expenses totalling £277,811.74. The approval of only £73,352 has left them personally liable to GM’s estate in the sum of £204,459.74, which they must pay back.


The Judge was then alive to the fact that GM did not have a will and that an application might be made for a statutory will, and that in doing so, JM and MJ might become the beneficiaries, allowing them to avoid repayment AND gain the remaining funds into the bargain.

  1. I shall not attempt to prejudge the outcome of any statutory will application, but, if an order is made for the execution of a will on GM’s behalf, there is a possibility that MJ and JM could become her residuary beneficiaries, in which case their liability to her estate may become less relevant.
  1. On the other hand, the judge who considers the statutory will application may take the view that, if she had testamentary capacity and was fully aware of what has been going on, GM would be outraged by the applicants’ conduct and would make no provision for them at all.
  1. Alternatively, the judge may find that GM’s intestate heirs have had closer contact with her than the applicants suggest, or that certain charities, such as the Christadelphian Church, the Scottish National Trust or the National Deaf Children’s Society, have a more meritorious claim on her bounty and should receive the lion’s share of her estate.


And just for good measure, discharging them as deputies

  1. For the purposes of section 16(8) of the Mental Capacity Act, I am satisfied that the deputies have behaved in a way that contravened the authority conferred on them by the court and was not in GM’s best interests.
  1. I am not persuaded by any of Miss Bretherton’s submissions on their behalf, and I have no hesitation in revoking their appointment as deputies. GM’s finances are in disarray because of their conduct, and it is in her best interests that someone with experience of cases of unjust enrichment and restitution, such as a panel deputy, is appointed to manage her affairs in their place.

One of those cases where just reading it makes you want to take a long shower and despair about the ability of human beings to be craven and opportunistic.   Sadly there is nothing in the judgment about PC Plod being at the back of the Court with some handcuffs – I suppose one could make a case on obtaining by deception (since they would never have had the lawful access to GMs funds as a result of being appointed deputies if the Court had had any inkling that rather than looking after GM, they were simply going to enrich themselves at her expense)


Some days, I am afraid that I hope that the medieval world view of what happens after one dies is actually true.