Tag Archives: lasting power of attorney

The Costa dignity…. Financial abuse case

Posted on February 4, 2016 by suesspiciousminds

These cases always stir up my blood, and I ranted at my colleague sitting next to me about this one.

Re AH 2016

http://www.bailii.org/ew/cases/EWCOP/2016/9.html

In this one, a 95 year old woman, living in a care home and lacking capacity, had appointed her niece’s husband Colin (is that a nephew-in-law?) to manage her affairs under a Lasting Power of Attorney in 2011.

[One might doubt, from the facts given that she had capacity to enter into that LPA in 2011, when she’d have been 90 years old. Not terribly reassured that The person who certified that Alma had capacity to create the LPA owns a hotel in the New Forest. He said that “Alma has been a personal friend of mine over the past 25 years and has always popped in to see me on her visits to the New Forest.” ]

Since running her affairs for her, Colin has run up a debt of £100,000 on her nursing fees. He has withdrawn nearly £30,000 from her account. He has purchased a house and put it into her name (hardly for her benefit, since she’s never going to live in it)

During that time, he has given her the princely sum of £260 of personal allowance. That equates to less than £10 per month – or about £2 per week. Generously, he has sent her about 1% of the money that he took out of her account.

(e) Mixing of funds. Alma and Colin have a joint bank account with Virgin Money. The table within the bundle highlights fifteen ‘concerning’ outgoings which remain unexplained and which were clearly not purchase made on Alma’s behalf including debits to the Odeon cinema, the Wilton Arms Hotel, Toby Carvery and Costa Coffee. Upon his appointment as Alma’s attorney, by continuing to have a ‘mixed account’, Colin breached his duty to keep Alma’s money separate from his contrary to paragraph 7.68 of the Code and has behaved in a way that is not in Alma’s best interests in breach of section 4 of the Act. Attorneys must, in most circumstances, keep finances separate to avoid the possibility of mistakes or confusion and this is not a situation of a husband acting as his wife’s attorney (for example) which might render the presumption to be rebutted.”

It doesn’t seem likely that this 95 year old woman, living in a nursing home in Oldham was out visiting the Odeon cinema and drinking coffee in Costa in the New Forest…

Decision
The Court of Protection General Visitor, who saw Alma on 19 January 2015, observed that she “has no verbal communication and her dementia is so advanced that she is unable to demonstrate any understanding of her needs or her environment.”
I have no reason to doubt what the Visitor says and, on the balance of probabilities, I am satisfied that Alma lacks capacity to revoke the LPA.
Colin’s management of her property and financial affairs has been a litany of failings.
He failed to pay the nursing home fees and thereby put her placement in jeopardy.
The nursing home had difficulty contacting him. He failed to reply to their letters and failed to return their calls.
He failed to provide Alma with an adequate personal allowance. The stingy sum he did deign to pay her (£290 over 2½ years) amounted to less than £10 a month.
Her clothes are old and worn and mostly hand-me-downs from former residents who have died or moved elsewhere.
The Court of Protection Visitor concluded her report by saying that: “Alma would benefit from a full wardrobe of new clothing. In addition, she is reported to have loved to dance when she was mobile. The nursing home has provided a CD player but Alma would benefit from having her own music player and a range of CDs.”
Colin failed to provide her with even these modest luxuries that could have enhanced her quality of life.
He failed to account to the OPG. In fact, he failed to keep any accounts at all.
He failed to produce bank statements.
He failed to explain how he had managed to spend £29,489 of her money.
He failed to act with honesty and integrity.
He failed to keep Alma’s money separate from his own.
And he failed to treat her with any semblance of dignity, empathy or respect.
Having regard to all the circumstances, therefore, I satisfied that Colin has behaved in a way that contravenes his authority and is not in Alma’s best interests, and I shall revoke the LPA without further ado.

In the event that the police ever start prosecuting people like this for fraud or obtaining money by deception, I am more than willing to serve on a jury. Failing that, I hope the Devil has a Costa Coffee franchise in Hell, and that the Odeon there shows nothing other than “Failure to Launch” on rolling repeat.

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Posted in adult social care, case law, costs, court of protection and tagged 2016 EWCOP 9, duties under lasting power of attorney, financial abuse, it's not your fucking money, lasting power of attorney, Re AH 2016, senior judge lush. Bookmark the permalink.

Lasting power of attorney, financial abuse (contains ranting and references to tattoos)

Posted on August 25, 2015 by suesspiciousminds

These financial abuse cases come along with depressing regularity. On the last one I wrote about, I made the suggestion that the pamphlet of guidance provided to those people who were appointed as attorneys/ deputies to manage the financial affairs of their vulnerable relative should have on the front cover “It’s not your fucking money”

I have changed my position. That succinct advice should instead be tattooed across the back of the Attorney/deputy’s right hand.

Re ARL 2015

http://www.bailii.org/ew/cases/EWCOP/2015/55.html

This was decided by long-standing favourite of Suesspicious Minds, Senior Judge Lush.

Here are some of the things that the Attorney (the son of the vulnerable person) did with his mother’s money

The application was accompanied by a witness statement made by Sophie Farley, who had investigated the case at the OPG. To summarise, she said that:

(a) On 18 July 2014 concerns were raised with the OPG regarding ICL’s management of his mother’s property and financial affairs.(b) There was a debt of £39,000 in respect of unpaid care fees, which ICL was unwilling to pay because he believed that his mother should be receiving NHS Continuing Health Care.

(c) ICL was also in dispute with Hertfordshire County Council and claimed that ARL had been placed in the nursing home in Radlett without his consent. He had instructed Newlaw Solicitors in Cardiff to apply for compensation on his behalf.

(d) He was not providing ARL with an adequate personal allowance.

(e) It was not known known when he had last visited her, but it was thought to have been some time in 2013.

(f) In May 2013 ICL sold ARL’s house in Wheathampstead for £265,000 and used £174,950 from the net proceeds of sale to purchase a flat in his own name in Wheathampstead High Street. The OPG had carried out a search at the Land Registry, which confirmed that ICL is the registered proprietor.

(g) The difference of approximately £90,000 between the net proceeds of sale and the purchase price of the flat had been credited to ICL’s business account, rather than to an account in ARL’s name.

(h) The OPG wrote to ICL on 4 August 2014 asking him to account fully for his dealings with his mother’s finances.

(i) He replied a fortnight, on 18 August, later saying that he had far too many other things to deal with at that time.

(j) He said he was going to meet someone from Labrums Solicitors for advice on his responsibilities under the LPA, “which are now becoming too onerous.”

(k) He has only produced bank statements from October 2012 to October 2013, and an inspection of the bank statements he did produce revealed that he had spent at least £6,641 in a way that was not in ARL’s best interests.

(l) He had failed to account fully for his dealings.

(m) A Court of Protection General Visitor (Christine Moody) saw ARL on 15 August 2014 and confirmed that she has dementia and lacks the capacity to revoke the LPA

Now, under my methodology of hand tattooing, he would have been in no doubt that spending £175,000 of his mother’s money on a house for himself was not on, because when he signed the paperwork it would have been staring him in the face. Mandatory tattooing.

If this man does happen to have in his possession a mug that reads “Best Son Ever” or similar, it should be confiscated from him, and smashed to pieces in front of him. In fact, if the legend is not “Statistically within the bottom 1 % of sons ever” or “not quite as bad a son as Nick Cotton out of EastEnders”, smash it up.

Anyway, let’s see what his explanation for all of this was (the “too long; didn’t read” version is “I needed money, and she had money, so I spent her money” – to which, I would refer him to the tattoo that reads “It’s not your fucking money”. Sigh. )

“I admit that some of the remaining funds have been used for personal outgoings for me and my family. This was because of difficult personal circumstances. As previously stated, I am fully prepared to pay back the entire amount that I have borrowed from my mother as soon as the sale of my former matrimonial home has completed. In the interests of complying with my duties as an attorney, I set out as far as possible an honest account of the remaining funds:

(a) I was caught drink driving in February 2013 and accordingly I borrowed £3,380 from my mother’s funds to cover my legal costs of defending my position (£2,640) and other related costs such as court fees (£500) and a penalty fine (£240). I attach letters confirming these costs sent to me by Freeman & Co. Solicitors and Sweetmans Solicitors.

(b) I ran out of money in April 2013 and had to borrow £7,500 from a friend, Mrs Pollard, in order to keep afloat financially. I repaid my friend this sum from my mother’s funds.

(c) I was required to pay a deposit of $1,500 (approx. £995) to secure my son’s place at university in the USA and I borrowed my mother’s funds to cover this.

(d) I was also required to cover my son’s college fees whilst he was studying in the USA totalling £7,500. I paid these fees in instalments from my mother’s funds.

(e) I sent £300 to my son on a monthly basis whilst he was living in the USA. These payments totalled £2,400.

(f) I also paid for my son’s flights to and from the USA during his year abroad and also for flights for myself to visit him in the USA totalling £2,774.

(g) During a visit to the USA to see my son in August 2013, I spent a total of $630 (approx. £418) on accommodation and £500 on sundry expenses.

(h) I also paid for my son’s car insurance from my mother’s funds totalling £4,757.17.

(i) During the summer of 2013 I borrowed £6,300 of my mother’s funds for works to my former matrimonial home.

(j) As previously mentioned, JJT borrowed £2,500 of my mother’s funds.

(k) I cannot specifically account for the remainder of the £90,050. However. I am sure that, save for the £2,500 borrowed by my sister, it would have been used by me in order to cover the living costs of my family.

Now, of course, it is utterly reasonable to raid your mother’s finances, which you’ve been entrusted to manage on her behalf in order to defend yourself when you get caught drunk-driving, and then to pay the fine. I mean, why would you use her money to pay her actual living expenses and nursing fees, when you can be paying your drink-driving fines with it?

It is also of course utterly reasonable to not provide your mother with a living allowance out of HER money, but instead use HER money to pay for your SON to have a living allowance whilst he is at College in America.

He also claimed that he didn’t know that the house he purchased with his mother’s money was registered in his name. Of course he didn’t.

(e) Until completion of the purchase of the flat in the High Street had taken place, he hadn’t realised that the property was held in his name. He said, “I have subsequently made enquiries of the conveyancer who dealt with the purchase of the property, who confirmed that, as I completed a summary of instructions in my own name, this is the name in which the property was purchased.”

(f) He said it was always the intention that this property was purchased for the benefit of his mother and that he would be happy for the property to be transferred into her name.

As ever with financial abuse cases, I find myself looking at the regulations for the provision that says that a deputy who does this shall be placed in stocks in the town centre for a period of forty days and be pelted with rancid fruit, but it seems to have been wrongly omitted from the regulations.

Let’s be really clear. Someone who loves and trusts you isn’t able to manage their money for themselves, so they ask you to look after their money for them. And you take that love and trust and repay it by using THEIR money to pay your drink driving fines and buy yourself a house, whilst at the same time running up £39,000 of debts on her behalf in unpaid care fees. I hope that there really is a special circle of hell for people like this.

The Judge was also unimpressed with the Deputy’s behaviour, although somewhat less medieval in the sanctions than I myself would wish to be.

In this case, ARL’s placement in the nursing home at Radlett was in jeopardy and there was a serious risk that she would be evicted because of ICL’s wilful refusal to pay her care fees. She is settled and content at the nursing home and any action or inaction that might prejudice her placement is not in her best interests.
As is frequently observed in cases of this kind, a failure to pay care home fees, a failure to provide an adequate personal allowance, a failure to visit, and a failure to produce financial information to the statutory authorities, go hand in hand with the actual misappropriation of funds.
In this case, ICL’s misappropriation of funds includes, but is not limited to:

(a) The purchase of a property in his own name, using £174,950 of his mother’s funds. One of my particular concerns is that ICL is currently going through an acrimonious divorce, and there is a possibility that ARL’s funds could somehow, inadvertently, become part of the settlement in the matrimonial proceedings.(b) Pocketing the rental income from the property for the last two years.

(c) The funds referred to in paragraph 16 (a) to (i) above, which by my reckoning amount to £36,524.17.

(d) ICL’s admission at paragraph 16(k) that he cannot specifically account for the remainder of the £90,500, “However, I am sure that, save for the £2,500 borrowed by my sister, it would have been used by me in order to cover the living costs of my family.”
I have no confidence in ICL when he says, “I am fully prepared to pay back the entire amount I have borrowed from my mother as soon as the sale of my former matrimonial home has completed.” He made a similar promise on 15 January 2015, when he offered to transfer title to the flat in the High Street from his name into his mother’s name, but has done nothing about it during the last seven months.
I find it incredible that ICL is ready, willing and able to pursue a claim against Hertfordshire County Council for unlawfully depriving ARL of her liberty, yet is pumped up with tranquillizers and was in no fit state to attend the hearing in this matter.
I also find it curious that he has instructed so many different firms of solicitors or other providers of legal services at his mother’s expense, often to defend the indefensible:

(a) Rowlington Tilley & Associates drew up the LPA.(b) He was going to meet someone from Labrums Solicitors, St Albans, to advise him on his responsibilities under the LPA.

(c) NewLaw Solicitors, Cardiff, were advising him on his dispute with Hertfordshire County Council regarding ARL’s placement in the nursing home in Radlett and were also pursuing a claim against the NHS for Continuing Health Care.

(d) Freeman & Co., Solicitors, Manchester – The Home of Mr Loophole – had been instructed to defending him when he was prosecuted for drink driving.

(e) He also instructed Sweetmans, another firm of specialist drink driving solicitors.

(f) Taylor Walton acted for him in the sale of his mother’s house and the purchase of the flat in the High street, and in the proceedings brought against him by the Public Guardian.
I wonder whether this is a smokescreen to ensure that no one firm or company is fully aware of the extent of his ineptitude and deceit.
I am satisfied that ICL has behaved in a way that both contravenes his authority and is not in ARL’s best interests.

[I might comment in passing that if you ARE arrested for drink driving, and you consult “Mr Loophole” and he can’t get you off, it is throwing good money after bad to go to a second lawyer to see if they can. It seems to me that you are probably ‘bang to rights’ on the charge. Of course, when it is NOT YOUR Fucking money, I suppose it bothers you slightly less]

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Posted in adult social care, case law, costs, court of protection and tagged deputy, financial abuse, lasting power of attorney, misuse of funds, not your fucking money, re arl 2015, senior judge lush. Bookmark the permalink.

Financial abuse, Court of Protection

Posted on June 24, 2015 by suesspiciousminds

I have talked before about how I think Senior Judge Lush has probably the best case load in English justice, and this is another one that doesn’t disappoint.

It is probably the most blatant bit of financial abuse I’ve come across, and I hope that those involved will get what is coming to them.

Re OL 2015

http://www.bailii.org/ew/cases/EWCOP/2015/41.html

OL is 77 and has clearly worked hard all of her life and built up savings. She had a stroke and signed a Lasting Power of Attorney to allow her son YS and her daughter DA to manage her financial affairs on her behalf. There was a third son, who as far as I can see is blameless. Neither DA nor YS were young people, and they had proper jobs – they were not young and impulsive, nor should they have been in financial dire straits.

Despite this, they took the money that they were managing on their mother’s behalf and spent it on themselves.

Let’s put it really starkly

In the six months that DA and YS were ‘looking after’ their mother’s finances, she went from having £730,000 to £7,000.

DA and YS on the other hand, had paid off their mortgage, had a loft conversion, bought a new house (entirely with their mother’s money) in which their mother (who paid all of the money) had a 20% stake and DA (who paid not a penny) had a 40% stake and YS (who also paid not a penny) had a 40% stake.

£730,000 to £7,000 in six months, equates to OL’s financial resources dwindling at a rate of £2,800 per day. OR that at the rate of spending, she had about another three days money left.

Or to put it yet another way (going back to Mostyn J * and the Pizza Express case https://suesspiciousminds.com/2015/06/18/taking-forty-thousand-pounds-in-cash-to-pizza-express/) if OL had instead of appointing deputies, had gone into Pizza Express and bought meals for fifty people a day, for every day over the last six months, she’d probably be slightly better off now. Or she could have met with the wife in that case and handed over that forty grand in cash EIGHTEEN TIMES and still been better off)

*second best case-load. And to misquote Bill Hicks “you know, after those first two best caseloads, there’s a real big f***ing drop-off”

Senior Judge Lush spells out all of the guidance and law on being a person’s deputy under the Lasting Power of Attorney. If you want to see it, you can find it all in the judgment. A key bit is here

Paragraph 7.60 of the Code says:

Fiduciary duty

“A fiduciary duty means attorneys must not take advantage of their position. Nor should they put themselves in a position where their personal interests conflict with their duties. They must also not allow any other influences to affect the way in which they act as an attorney. 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.”

I think I can condense all of the guidance and law into this simple sentence of my own, however (apologies for Anglo-Saxon language)

“If you are appointed as a deputy to manage someone’s financial affairs, it is NOT YOUR FUCKING MONEY”

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Posted in case law, court of protection and tagged deputy, fiduciary duty as a deputy, financial abuse, improper behaviour as a deputy, it is NOT your money, lasting power of attorney, lpa, re ol 2015, removing a person as a deputy, senior judge lush. Bookmark the permalink.

Incapacity of the Monarch (but really about Lasting Power of Attorney)

Posted on May 22, 2015 by suesspiciousminds

A quirky Court of Protection case from Senior Judge Lush, who seems to have the most interesting life – all of the cases are intricate and involving, and often with rich little details. I am quite envious.

Re XZ 2015

http://www.bailii.org/ew/cases/EWCOP/2015/35.html

The nub of it is that XZ, who is in his seventies and is a high net worth individual, instructed solicitors to draw up a Lasting Power of Attorney. He wanted to ensure that if he lost capacity, that his affairs would be managed, but he was also wanting to ensure that if it was a temporary blip that he would recover from, that decisions would not be made in that interregnum period that he might later regret having been made on his behalf.

There were thus some unusual and very carefully crafted clauses (the fact that the Lasting Power of Attorney makes express provision for decisions involving more than $25 million indicates that there are some significant affairs under consideration here)

Dominic Lawrance, the solicitor who drafted these provisions, described their purpose as follows:
“The purpose of these safeguards is to ensure that the attorneys do not act (other than in limited emergency situations) until XZ’s incapacity has:

(a) been unequivocally confirmed by psychiatric evidence that is subject to review by the Protector; and

(b) has endured for a minimum period of 60 days.

This has been designed to prevent:

(a) the attorneys taking hasty actions with which XZ might disagree if his lack of capacity were to prove temporary; and

(b) the attorneys acting when there remained genuine scope for doubt as to whether XZ indeed lacked capacity.”
At the hearing on 7 May 2015, Mr Lawrance added that these provisions were:

“… the product of XZ’s specific instructions. He is generally loath to confer discretions and powers on other people. He likes to be ‘in the driving seat’ and was only willing to sign the LPA if these safeguards were in place.”

When the LPA was lodged with the Public Guardian’s office, the Public Guardian refused to register it, meaning that it would have no effect. The Public Guardian took the view that these restrictions meant that it was not a properly formed LPA. That then led to the Court being invited to decide it.

And here is where the bit about incapacity of the monarch comes in. I had not previously encountered this bit of legislation, and I like it.

XZ’s counsel, David Rees, compared these provisions with those in the Regency Act 1937. Both include a requirement that a third party, who is not medically qualified, should agree with the medical evidence before the powers conferred on the delegate become exercisable. Section 2 of the Regency Act prescribes the following procedure in the event of the total incapacity of the Sovereign:

“If the following persons or any three or more of them, that is to say, the wife or husband of the Sovereign, the Lord Chancellor, the Speaker of the House of Commons, the Lord Chief Justice of England, and the Master of the Rolls, declare in writing that they are satisfied by evidence which shall include the evidence of physicians that the Sovereign is by reason of infirmity of mind or body incapable for the time being of performing the royal functions or that they are satisfied by evidence that the Sovereign is for some definite cause not available for the performance of those functions, then, until it is declared in like manner that His Majesty has so far recovered His health as to warrant His resumption of the royal functions or has become available for the performance thereof, as the case may be, those functions shall be performed in the name and on behalf of the Sovereign by a Regent.”

It is always nice to be able to say “My client asked for these clauses to be in place, because he wanted similar protection to that provided to the Queen” – I don’t imagine the chance to say it arises that often, but if you can deploy it, why not?

So, if the Queen (or any future Monarch) lost their capacity to make decisions, the procedure would mean that on advice of physicians, three or more of the following would need to make a declaration of incapacity – currently Prince Philip, Michael Gove (!), John Bercow (!), the Right Honourable Sir John Thomas, the Right Honourable Lord Dyson. And if three or more of them do that, then the Queen’s functions would be removed from her and given to a Regent. And she’d only get the powers and functions back if three or more of them agreed.

Ladies and gentlemen, that’s a statutory recipe for a coup in Great Britain. If you wanted to have a coup, that’s your legal route map.

[I’m a bit scared that Michael Gove is one third of the way to being able to seize all power from the Queen, if he can just talk two of the others into becoming ultimate rulers of the UK by his side. At least it isn’t Grayling I suppose. Given that the Lord Chancellor could sack the Master of the Rolls and Lord Chief Justice and appoint his own people…I should stop thinking about this]

I am scratching my head as to whether the Mental Capacity Act 2005 with its presumption of capacity disintegrates the Regency Act. The Regency Act is not in the list of repeals. But the Mental Capacity Act 2005 is said to cover people, and there’s no clause that says “people other than a reigning monarch”

So I already like the case for raising that bit of constitutional intrigue.

Senior Judge Lush had this to say in relation to why the judgment was published

I can’t imagine that the general public would have the slightest interest in this judgment, but its publication may be of interest to professionals who specialise in this area of the law and draft LPAs on a regular basis, and also to people who are considering making an LPA themselves, and for this reason I shall permit its publication.

That rather dampens my spirits, the Judge telling me that the general public won’t be interested, but it interested me. [And yes, I should get out more]

So, what’s the decision?

XZ acknowledges that his LPA will be less effective because of these provisions but, nevertheless, he wishes them to remain as an integral part of the registered instrument for his own reassurance and peace of mind. Some people may think that this is unwise, but it is his will and preference and it should be treated with respect. The Public Guardian has no right to make a paternalistic judgment on his behalf and decide that it would be in his best interests for these provisions to be severed.
I agree with Mr Rees’s submission that:

“With respect to the Public Guardian, it is no part of his statutory duties to police the practicality or utility of individual aspects of an LPA. In the context of section 23 and Schedule 1, paragraph 11 of the MCA 2005 the phrase “ineffective as part of a lasting power of attorney” clearly means “not capable of taking effect, according to its legal terms as part of an LPA.” Examples of provisions which would be ineffective as part of a power of attorney would include:

(a) a provision which purported to permit the attorney to make gifts which go beyond the statutory restrictions found at section 12 MCA 2005.

(b) a provision which purported to go beyond what a person can do by an attorney (such as make a will or vote).

(c) a provision which purported to permit the attorney to consent to a marriage on behalf of the donor (see MCA section 27(1)(a).

Neither the court nor the Public Guardian are concerned with whether a restriction that does not contravene the terms of the MCA 2005 may pose practical difficulties in its operation.”
The Public Guardian’s function under paragraph 11 of Schedule 1 to the Act is limited to considering whether the conditions and restrictions are (a) ineffective as part of an LPA or (b) would prevent the instrument from operating as a valid LPA.
If he concludes that they cannot be given legal effect, then he is under a duty to apply to the court for a determination of the point under section 23(1). Otherwise he has a duty to register the power.
Neither Miss Chandoo’s witness statement nor Miss Davidson’s submissions have identified any specific provision in the Mental Capacity Act 2005, or the LPA, EPA and PG Regulations, or the common law of agency that has been infringed by the provisions in XZ’s LPA.
For these reasons, and pursuant to section 23(1) of the Act, I declare that XZ’s LPA does not contain any provisions which: (a) would be ineffective as part of an LPA; or
(b) would prevent the instrument from operating as a valid power of attorney.
I also order the Public Guardian to register the LPA.

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Posted in case law, court of protection and tagged court of protection, lasting power of attorney, lpa, mental capacity act, public guardian, public guardian refusing to register an lpa, re xz 2015, regency act 1937, senior judge lush. Bookmark the permalink.

Lasting power of attorney – revocation.

Posted on February 13, 2015 by suesspiciousminds

Re SB 2015 http://www.bailii.org/ew/cases/EWCOP/2015/7.html is another case heard by Senior Judge Lush, involving a person who signed a Lasting Power of Attorney, giving her sons the ability to manage her financial affairs on her behalf when she lost capacity.

It is a GOOD thing to have a Lasting Power of Attorney, particularly if you know that you are suffering from an illness which is going to rob you of the capacity to make decisions for yourself. Much better that those decisions be made by someone you love and trust, rather than by strangers or a Court.

It therefore annoys me massively when the people given that trust misuse it like this man.

b) BB had used £19,038.69 of his mother’s money to pay his farm suppliers.

(c) BB had invested a further £24,000 of his mother’s funds in a biomass boiler at his farm.

(d) although SB owns two investment properties, the rental income from them had not found its way into her accounts.

BB’s response?

On 7 October 2014 BB filed an acknowledgment of service in which he stated that he objected to the application. He said:

“I truly believe that we still have the best interest of our Mum at heart both her welfare & finances.”

The Lasting Power of Attorney gave the son the right to manage his mother’s affair FOR HER, and for her benefit. It was not a right to spend what he was assuming was his inheritance whilst she was still alive. If she had wanted to give him this money whilst she had capacity, that would be fine, but she had not made that decision. This is dipping into (well, more plunging than dipping) his mother’s money for his own benefit.

For those who criticise the existence of the Court of Protection (and there are flaws with it, it isn’t perfect), what is your alternative for this? Let the son rob his mother blind?

The cases about sterilisation and C-sections and deprivation of liberty are the ones that get the headlines, but these financial exploitation cases are the real bread and butter of Court of Protection work. It is desperately sad that when money comes into the picture, some people are prepared to abuse the trust placed in them and use their parents money as if it were their own.

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Posted in case law, court of protection and tagged court of protection, financial abuse, financial exploitation, lasting power of attorney, Re SB, revocation of lasting power of attorney, revocation of lpa, senior judge lush. Bookmark the permalink.

Seeking costs against the Public Guardian in a financial safeguarding case

Posted on December 9, 2014 by suesspiciousminds

The Public Guardian and CT and EY 2014

http://www.bailii.org/ew/cases/EWCOP/2014/51.html

As District Judge Lush observed, this is the first reported case where a costs order has been sought against the Public Guardian.

By way of quick background, CT is 85 and had a stroke a year ago, which later led to a diagnosis of dementia. There has been a considerable family schism, and CT is close to his daughter EY but not close to much of the rest of his family.

A month after his stroke, he entered into a Lasting Power of Attorney arrangement, appointing EY as his sole attorney.

In July 2014, the Public Guardian, having received a referral that EY was misusing the Lasting Power of Attorney, conducted an investigation and made an application to the Court of Protection under s48 of the Mental Capacity Act 2005 for declarations about whether CT had capacity and if not what directions / declarations should be made about his affairs.

The application was accompanied by a witness statement made by David Richards, an investigations officer with the OPG, who said that:

(a) in September 2013 CT’s son and daughter-in-law had raised concerns with the OPG.

(b) on 13 June 2013 CT had severed the joint tenancy of the matrimonial home and the adjoining property, which he and his wife also own.

(c) CT had ceased paying the utility bills on the matrimonial home; had stopped transferring housekeeping money to his wife, and had closed their joint bank account.

(d) in September 2013 CT applied to the Land Registry to register the matrimonial home in his sole name.

(e) on 30 September 2013 a Court of Protection General Visitor, Emma Farrar, saw him at Grays Court Community Hospital. She thought that CT possibly could suspend or revoke the LPA, but that he would require considerable support in doing so.

(f) Havering Social Services had raised a safeguarding alert.

(g) the OPG asked EY for an account of her dealings.

(h) EY replied her father still had capacity and that the OPG’s enquiries were an invasion of his privacy.

(i) in January 2014 the OPG commissioned a visit from a Court of Protection Special Visitor (Dr T.G. Tennent, DM, FRCPsych) but EY and her partner, who is employed by Moss & Coleman Solicitors, refused to let him visit CT.

(j) Dr Tennent was, nevertheless able to examine CT’s medical records, and in his report, dated 31 March 2103, he came to the conclusion that CT had capacity (a) to make the LPA and (b) to sever the joint tenancies, but that it was “impossible to offer any opinion as to Mr Todd’s current capacity in relation to the queries (c) to (j).”

There then follows a somewhat complex history, but the substance of it was that the expert who examined CT, Professor Jacoby, was of the view that CT’s capacity fluctuated, but that there were times and had been times when he had had capacity to make his own financial decisions (and thus the LPA wasn’t being used at all at those times)

Professor Jacoby prefaced his assessment of CT’s capacity with the following preliminary remarks:

“I shall deal with the separate capacities as set out in my instructions which were taken from the directions order of 20 August 2014. Before doing so I wish to stress that I am relying on CT’s mental state as I observed it on 2 October 2014. However, I believe his mental state fluctuates both as regards his dementia and his episodes of delirium. I should make the following preliminary remarks:

(a) When he is delirious, in my opinion, he does not have any of the capacities listed below.

(b) When he is not delirious, but his dementia is more prominent, his capacities are weaker than when he is at his best.

(c) When he is at his best he does retain some capacities as described below.

(d) When he is at his best he is able to communicate his decisions, and I shall not comment further on this fourth limb of section 3(1) of the Mental Capacity Act 2005.

(e) When at his best I believe that his capacities can be enhanced by assistance in line with the judgment of Gibson LJ in Hoff et al v Atherton [2003] EWCA Civ 1554, in which he stated “it is a general requirement of the law that for a juristic act to be valid, the person performing it should have the mental capacity (with the assistance of such explanation as may have been given [my italics]) to understand the nature and effect of the particular act (see, for example, Re K (Enduring Powers of Attorney) [1988] Ch 310 at p. 313 per Hoffmann J.).” As I understand it, although I may be corrected by the court, giving assistance to persons with marginal capacities in order to enhance them is within the spirit of the Mental Capacity Act 2005.”

…

Professor Jacoby concluded his report as follows:

“In my opinion, when CT is at his current best and not in an episode of delirium, he retains the capacity to manage his affairs and to revoke or make an LPA, but that his capacities would be enhanced by disinterested advice. His capacity to litigate is not totally lacking but is, in my opinion, below a sufficient threshold, and he would, therefore, require a litigation friend.”

If CT had capacity at the time when he made decisions to sever the tenancy, stop paying money to his estranged wife and so on, then this was not a matter for the Court of Protection. As we know, if a person has capacity, then they can make decisions for themselves that another person might consider foolish or ill-conceived.

EY sought that the application be dismissed and sought that the Office of the Public Guardian should pay the costs.

On 14 August 2014 EY filed an acknowledgment of service, accompanied by a witness statement, in which she objected to the application and said that:

“The evidence in the attached witness statement shows unequivocally that CT had the capacity to make complex decisions in relation to his finances and property in September 2013. He underwent a further capacity assessment in November 2013 prior to discharge from hospital after nearly six months treatment and he was again assessed as having the capacity to make the very difficult and important decision as to his destination and future place of residence following his discharge. There has been no stroke activity since the incident in May 2013, nor any other event which might cause or signal a material change in his capacity since the last test was carried out some nine months ago. There is therefore no valid reason why he should not be presumed to have capacity at this time.”

EY proposed that “the application be dismissed and the OPG be ordered to pay the respondents’ costs (including the costs of taking legal advice).”

In most financial disputes, the person who loses the case is at risk of being ordered to pay the other side’s legal costs. It is a little different in Court of Protection cases.

Firstly, the Court of Protection have a general discretion (subject to other Rules) Section 55(1) MCA 2005 provides that “Subject to Court of Protection Rules, the costs of and incidental to all proceedings in the court are at its discretion.”

In terms of those Rules, they are set out in the Court of Protection Rules 2007 – they can be simplified like this:-

Normally if the proceedings relate to property of a vulnerable person, the costs of the proceedings are paid by that person or his estate
That starting point can be departed from if the Court thinks it is justified, and can take into account the conduct of the parties.
Conduct can include a wide variety of things, including before proceedings began.

Property and affairs – the general rule

Where the proceedings concern P’s property and affairs the general rule is that the costs of the proceedings, or of that part of the proceedings that concerns P’s property and affairs, shall be paid by P or charged to his estate.

Departing from the general rule

– (1) The court may depart from rules 156 to 158 if the circumstances so justify, and in deciding whether departure is justified the court will have regard to all the circumstances, including:

(a) the conduct of the parties;

(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(c) the role of any public body involved in the proceedings.

(2) The conduct of the parties includes:

(a) conduct before, as well as during, the proceedings;

(b) whether it was reasonable for a party to raise, pursue or contest a particular issue;

(c) the manner in which a party has made or responded to an application or a particular issue; and

(d) whether a party who has succeeded in his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response.

(3) Without prejudice to rules 156 to 158 and the foregoing provisions of this rule, the court may permit a party to recover their fixed costs in accordance with the relevant practice direction.

In this situation, EY argued that the Office of the Public Guardian had really jumped the gun – they had brought a case based on EY misusing the Lasting Power of Attorney, when closer investigation would have shown that the decisions complained of had been made by CT himself. If the Public Guardian had conducted the investigation properly, there would have been no application and thus CT and EY would not have incurred any legal costs.

District Judge Lush felt that things were more complicated than that – the assessment of capacity had shown that CT’s capacity fluctuated and thus there had been times when EY was (or ought to have been) exercising the Lasting Power of Attorney.

The Judge also felt that EY had been obstructive in the investigation, causing some of these problems as a result of her own actions.

EY makes the point that she was not using the LPA because CT still had capacity, but even this is disingenuous. Professor Jacoby states in his report that “He is subject to recurrent episodes of delirium. … When he is delirious, in my opinion, he does not have any of the capacities listed below.” She should have been using the LPA during the recurrent episodes when CT lacked capacity.

The point is made that CT’s capacity should have been presumed. The precise wording of section 1(2) of the Mental Capacity Act is that “a person is assumed to have capacity unless it is established that he lacks capacity.” The Court of Protection General Visitor believed that CT possibly could suspend or revoke the LPA, but that he would require considerable support in doing so. The reason why the OPG asked a Special Visitor to see CT was so that a specialist could look for objective evidence that would be sufficient, on the balance of probabilities, to establish whether CT had capacity or not and, accordingly, whether the Court of Protection had jurisdiction or not.

EY would not allow the Court of Protection Special Visitor to examine CT because she mistrusted anything to do with the OPG. The Special Visitor’s report would have been provided to CT free of charge, from public funds, but EY insisted on instructing an independent expert, instead. This resulted in the proceedings being more expensive and protracted than they need have been.

I have no real concerns about the OPG’s conduct. Any investigation will seem heavy-handed to the person under the spotlight, but the OPG’s conduct was by no means disproportionate and does not even approach the threshold identified by Mr Justice Jonathan Baker in G v E (Costs). The OPG certainly did not act in blatant disregard of the Mental Capacity Act processes or in breach of CT’s rights under the European Convention on Human Rights. Having regard to all the circumstances, it would be unjust to penalise the OPG by way of a costs order.

Bearing in mind the usual rule, the legal costs of all of the proceedings would be met by CT. The Judge, having been invited to look at costs, had to consider whether that approach would be fair and just, given the actions of EY.

(This must have caused a bitter taste – having asked for the Public Guardian to pay the costs, EY found herself at risk of having to pay a portion of the costs herself)

There is no doubt about it. EY and her partner refused, without reasonable cause, to let the Special Visitor visit CT or even speak to him over the phone. Dr Tennent’s report of 31 March 2014 stated:

“Over the course of these conversations EY referred everything to her partner. Quite politely they told me that CT did not want to see me but would not permit me to speak directly with him. They would not provide me with the name or address of CT’s current general practitioner. As I understood it, they were of the view that although CT had made an LPA he was still capable of managing his own affairs and they were not using the LPA and therefore the OPG should not be involved with his affairs. They told me that they were in correspondence with the Office of the Public Guardian about the matter and that until this had been resolved they did not want me to visit their home.”

EY’s insinuation that a Court of Protection Special Visitor is neither independent nor impartial is both unwarranted and offensive.

For me, the most striking feature of Professor Jacoby’s report was the repetition of a theme, which, like Ravel’s Boléro, rises in a continuous crescendo.

In response to question (2) he said:

“Again, I consider that he would benefit from disinterested advice before making this decision.”

He deliberately highlighted the word ‘disinterested’ by italicising it.

In response to question (4), he said:

“Where more complex decisions are required he would, in my opinion, benefit from disinterested advice.”

In his reply to question (5), Professor Jacoby said:

“I consider that at his best CT does retain the capacity to give instructions to his attorney in relation to his property and affairs, and that he would benefit from disinterested advice for more complex decisions.”

In his conclusion, which I have set out in paragraph 23, he said:

“… his capacities would be enhanced by disinterested advice.”

And in response to question (4) again, the professor actually ventured to say that:

“I am not making any comment here about the quality of the advice he now gets from EY because this is beyond my remit and I have no information on it anyway. However, because he is now dependent on her for his day to day care he might be more likely to accept her advice without more careful consideration.”

I have never before read a report on someone’s capacity that has contained so many references to the need for ‘disinterested advice’. The only interpretation of this can be that Professor Jacoby believed that, although CT still has capacity in certain areas, he is being influenced by his daughter, and her advice is anything but disinterested.

[

The Judge decided that it would be wrong for CT to be ordered to pay EY’s legal costs, and EY would be responsible for her own costs

Decision

If I were to apply the general rule for costs in a property and affairs case (rule 156), I would be required to order CT to pay the costs of these proceedings.

The Public Guardian was seeking no order as to his own costs, whereas EY was seeking an order that her costs should be paid by the Public Guardian.

For the reasons given above, and having regard to all the circumstances, I consider that a departure from the general rule is justified and I shall order EY to pay her own costs because her conduct, before and during the proceedings, has been aggressive and disingenuous and has resulted in both sides’ costs being far greater than they would otherwise have been.

The overall effect is that I shall make no order for costs, though, having agreed to commission a report from a single joint expert, the Public Guardian and EY are jointly liable to pay a half of Professor Jacoby’s fee of £2,200 (£1,850 + VAT) for reading the documents, travelling from Oxfordshire to Essex, examining CT, and writing his report.

There is scope for a costs order to be made against the Office of the Public Guardian, if they behaved unreasonably in the course of the litigation, but this was not the case for it.

As my old law tutor used to say about Equity – “he who comes to Court must come with clean hands”

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Posted in case law, costs, court of protection and tagged costs, court of protection, district judge lush, financial safeguarding, lasting power of attorney, lpa, mental capacity act, office of the public guardian, public guardian, the Public Guardian and CT and EY 2014. Bookmark the permalink.

No point being the richest woman in the graveyard

Posted on October 10, 2014 by suesspiciousminds

Re JI (revocation of lasting power of attorney) 2014

http://www.bailii.org/ew/cases/EWCOP/2014/36.html

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.

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Posted in adult social care, case law, court of protection and tagged attorney misusing finances, court of protection, duty on attorney to keep accounts, financial abuse, lasting power of attorney, re jl revocation of lasting power of attorney, senior judge lush. Bookmark the permalink.

Manuela Sykes

Posted on February 27, 2014 by suesspiciousminds

Manuela Sykes, from what I have read about her, sounds like an amazing woman. I hope that her actions in this case make a difference for others like her in the future.

http://www.bailii.org/ew/cases/EWHC/COP/2014/B9.html

Lucy Series over at The Small Places has written an amazing and moving article about this woman, and it is far better than anything that I will manage, so go and read that

http://thesmallplaces.blogspot.co.uk/2014/02/i-was-ever-fighter-so-one-fight-more.html

Manuela was 89 and suffered from dementia. It was considered by Westminster that she could not be kept safe in her own home, so they placed her in a secure home and (very commendably) made an application to the Court of Protection for authorisation of Deprivation of Liberty (making that application allowed Manuela to be represented and to challenge that and made it a judicial decision rather than an administrative one. That was a damn fine thing to do, well done Westminster)

District Judge Eldergill decided the case, and I would like to say that it is a model judgment – I hope it blazes a trail that others will follow. (Justice Jackson decided a case on a similar rationale in 2013, a judgment I praised highly at the time)

Ms S has had a dramatic life, and the drama is not yet over.

She has played a part in many of the moral, political and ideological battles of the twentieth century. A vegetarian from an early age; a lifelong feminist and campaigner for women’s rights; a Wren in the Fleet Air Arm; a committed Christian; a political activist who stood for Parliament; a councillor on the social services committee of the local authority that now authorises her deprivation of liberty; the editor for 40 years of a trade union newspaper; a helper of homeless people and an advocate for them; and a campaigner for people with dementia, from which condition she now suffers herself.

The court is not concerned with her particular political views, whether they are left or right of centre, and nor is it concerned with her religious views. These are matters for her. Their main relevance to this court is that by nature she is a fighter, a campaigner, a person of passion. She appears always to have placed herself in the public eye, in the mainstream, rather than ‘far from the madding crowd,’ debating the issues of the day, causing, accepting and courting controversy.

In 2006, she was diagnosed with dementia and appears to have responded to that in the same forthright manner with which she has approached everything else in her life. She participated in a dementia project and campaigned for the rights of dementia sufferers, in particular older women. In December 2006, she made a living Will. Some time later, in 2011, she appointed an attorney for property and affairs, a person she trusted to act for her in accordance with guidance set out in her LPA (attorney) document.

I DECLARE THAT if at any time any of the following circumstances exist, namely:

1 I suffer from one or more of these conditions: ….

1.5 senile or pre-senile dementia (e.g. Alzheimer’s disease); ….

2 I have become unable to participate effectively in decisions about my medical care; and

3 Two independent doctors (one a consultant) are of the opinion, having examined in full my circumstances and prognosis, that any of the following apply:

3.1 there is no reasonably likelihood of substantial recovery from illness involving severe pain and distress and from which it is likely I will die in the near future; or

3.2 I am in a state of unconsciousness or coma and it is unlikely that I will regain consciousness; or

3.3 I suffer from a mental illness resulting in me having a very limited awareness of my surrounding environment and an inability to perform basic tasks and from which it is unlikely that I will recover.

THEN AND IN THOSE CIRCUMSTANCES my directions are as follows:

1 That I am not to be subjected to any medical intervention or treatment aimed at prolonging or sustaining my life;

2 That I consent to the control of physically distressing symptoms…by appropriate and aggressive palliative care even if such care is likely to have the effect of shortening my life ….

That document proved to be very important, and I hope that this case will highlight how important such documents can be in protecting your wishes – amongst other things, it ensured that Manuela’s desire that her name should be published if she ever came before the Court of Protection meant that I can name her, and gives a much greater chance that the mainstream press will follow her story.

On the issue of capacity, the Judge found that Manuela, did, as a result of her dementia lack capacity to make decisions for herself about where she should live

Effect of this dementia on MS’s capacity to make the relevant decisions

Ms S is intelligent, articulate and knowledgeable. She has no difficulties expressing herself. That her core personality is intact is clearly demonstrated by her continuing and passionate commitment to the causes to which she has dedicated her life. Her weight is healthy, physically she looks many years younger and fitter than her chronological age, she presents well and her care is good. There are, therefore, currently no signs of neglect or refusal of care.

Unfortunately, this is not the whole picture. Her short-term memory is very severely impaired. Because she is so intelligent and articulate, this may not be immediately apparent from a brief superficial exchange.

Following an examination on 2 December 2013, Dr Barker reported that her short-term memory is less than one minute. It is this inability to retain information which lies at the root of many of her recent difficulties. The consequence is that she is unable to retain, nor therefore weigh, information (highly) relevant to the decisions about the treatment, care and support she requires.

In particular, she cannot recall the circumstances and behaviour that caused others to remove her from her own home to hospital and to transfer her to residential care. Lacking this information, she does not accept that she had significant problems at home, nor therefore that she requires a significant package of care and support. Nor can she appreciate that, without additional care, it is likely that the problems will be the same as before, because the situation is the same as before. It is recorded that she has a tendency to become defiant when these issues are raised. This is logical and understandable because, unless one has a memory of the previous difficulties, the professional view must appear patronising and intrusive, and the problems made-up or grossly exaggerated.

Sadly, the preponderance of the evidence requires a conclusion that MS lacks capacity to make the relevant decisions for herself. She frequently asks, ‘Why am I here’ because she cannot remember how her situation has arisen, nor therefore understand and weigh the reasonably foreseeable consequences of accepting or refusing necessary care or support.

To summarise, I accept the professional and family view that she lacks the capacity to make these decisions for herself because her dementia has affected her ability to understand, retain and weigh the relevant information. It is more than simply an unwise decision that she chooses to make, if free to do so.

I admire District Judge Eldergill immensely for being honest about the dilemma before the Court – there was no solution that would keep Manuela Skyes HAPPY AND SAFE – there was a choice to be made between the two.

Having summarised the legal framework, I must consider MS’s best interests in the context of it.

There is, of course, no solution.

In the suggested care settings the situation will be less than optimal.

None of the options canvassed with the court will provide Ms S with security, safety, liberty, happiness, an absence of suffering and an unrestricted home life. These different considerations cannot all be reconciled and promoted within a single setting, and the realisation of some of them must inevitably involve the sacrifice of others. The task is to choose which of these legitimate values and aims to compromise and which to give expression to, in her best interests.

The Judge addressed how Manuela Sykes expressed wishes fed into the best interests decision – underlining is mine – expect to see this quoted fairly often

S’s wishes and feelings are important factors to be taken into account when reaching my decision: after all, why would anyone wish someone to be cared for otherwise than in accordance with their wishes if they can be adequately cared for in accordance with their wishes?

In taking her wishes and feelings into account, I have considered the case of ITW v Z, [19] the degree of incapacity, the strength and consistency of her views, the likely impact of knowing that her wishes and feelings are being overridden (if my decision is contrary to her wishes), the extent to which her wishes and feelings are rational, sensible, responsible and pragmatically capable of sensible implementation, and the extent to which her wishes and feelings can properly be accommodated within the court’s overall assessment of her best interests.

I have noted the consistency of her wishes and feelings; the effect on her mental health, happiness and well-being of the continued loss of her home; her attitude towards institutional life and the importance to her of her freedom. She values her privacy and the sense of security at home.

MS is still able to appreciate and express the value of being at liberty and being allowed autonomy. [20] The importance of individual liberty is of the same fundamental importance to incapacitated people who still have clear wishes and preferences about where and how they live as it is for those who remain able to make capacitous decisions. This desire to determine one’s own interests is common to almost all human beings. Society is made up of individuals, and each individual wills certain ends for themselves and their loved ones, and not others, and has distinctive feelings, personal goals, traits, habits and experiences. Because this is so, most individuals wish to determine and develop their own interests and course in life, and their happiness often depends on this. The existence of a private sphere of action, free from public coercion or restraint, is indispensable to that independence which everyone needs to develop their individuality, even where their individuality is diminished, but not extinguished, by illness. It is for this reason that people place such weight on their liberty and right to choose.

Any written statements made by her when she had capacity

Ms S’s living Will and the guidance in her Lasting Power of Attorney are written statements which I have considered and taken into account. They indicate a wish to remain in her own property for as long as ‘feasible’ and in general that she prioritises quality of life over the prolongation of life (see §5).

Relevant beliefs and values

The law requires objective analysis of a subject not an object.

Ms S is the subject.

Therefore, it is her welfare in the context of her wishes, feelings, beliefs and values that is important. This is the principle of beneficence which asserts an obligation to help others further their important and legitimate interests. In this important sense, the judge no less than the local authority is her servant, not her master.

Applauds

The available evidence indicates that Ms S’s relevant beliefs and values include a very strong belief in and commitment to the value of open public debate and social services for those who need them.

She has unambiguous opinions about what is right and what is wrong, and has spent much of her life airing those opinions. It seems plain that it is fundamental to her nature and purpose in life that she is free to air and promote her political and personal values through discussion, marches, rallies, newspapers, campaigning and other forms of political activity.

She has a strong will to change the world, to influence others and to draw their attention to the plight of those she believes need and deserve more care, such as the homeless and people experiencing dementia. She also has a strong desire to promote the interests of those she believes are politically disadvantaged: women as compared with men; the homeless compared to those with homes; the older and more frail compared with the younger and fitter; and, to use her term, the ‘double whammy’ disadvantage of older women.

These political and personal values have a religious element, evident from her expressed religious beliefs and attendance at church services and Quaker meetings.

One thing she seems never to have lacked is courage and a willingness to place herself at the centre of public debate and attention. She stood in two Parliamentary by-elections and campaigned to have Buckingham Palace rated. Indeed, the impression is that she relishes being at the centre of public events because it means that she is exerting influence; is being heard; is affecting the outcome of social issues important to her.

All of this is highly relevant when it comes not only to the court’s decision concerning her care package but also, and perhaps even more so, the decision whether she should remain anonymous or be identified as the person at the heart of her case. What she has done with her life indicates that she has always wanted to be ‘someone’, to have influence.

Realistically, this is her last chance to exert a political influence which is recognisable as her influence. Her last contribution to the country’s political scene and, locally, the workings and deliberations of the council and social services committee which she sat on.

On a personal level, her strong sense of self, her belief in the importance of the individual, her desire for freedom and autonomy are magnetic factors, operating at positive and negative poles by providing both the pull of freedom and the counterforce of resistance to outside care.

It is undoubtedly hyperbole to suggest that Manuela Sykes is the Rosa Parks of dementia, but what the hell – that is how I feel about her at this moment.

It is my view that it is in Ms S’s best interests to attempt a one-month trial of home-based care.

Very helpfully, at the end of the final hearing the local authority told me that if I rejected its primary case, and decided on such a trial, they would put a transitional plan in place to enable the trial to proceed.

The judgment was published, and Manuela’s name not anonymised – in accordance with what she had asked for. The Judge does make this very good observation about “secret Courts” though, and I think it has wider application

Under the Court of Protection Rules 2007, the general rule is that a hearing is to be held in private.

This reflects the personal, private, nature of the information which the court is usually considering.

That is not the same as being secretive; a GP is not a ‘secret doctor’ because the press have no unqualified right to be present during patient consultations or to report what is said. All citizens have a right to expect that information about them will be held in confidence by their doctors and social workers, and to expect that any overriding, future, need to breach this right will go no further than necessary, and only exceptionally involve seeing it in national newspapers.

Everyone benefits from, and enjoys, this level of privacy and therefore there is a strong public interest in privacy. Not to allow an incapacitated person the same general right to privacy or confidentiality that we claim it for ourselves would be to discriminate against them because of their mental illness and vulnerability.

The one, highly important, difference is that whilst in an ideal world incapacitated people would have exactly the same right to privacy and confidentiality that the rest of us enjoy, when judges make decisions for them this brings into play the competing consideration that the public ought to know how courts of law function and administer justice: what kinds of decisions they are making, the quality of those decisions, and so forth.

While it is sometimes necessary to distinguish between ‘the public interest’ and ‘matters which the public finds interesting,’ there is a high public interest in seeing that hearings which determine the rights of incapacitated people, and their families, are fair and properly administered.

[You don’t often get cases where everyone involved comes out of it well, but this is one]

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Posted in case law, court of protection and tagged dementia, deprivation of liberty, lasting power of attorney, living will, manuela sykes, westminster v sykes 2014. Bookmark the permalink.

You say “Investing”, I say “embezzling”, let’s call the whole thing off

Posted on October 9, 2013 by suesspiciousminds

Am beginning to be very fond of Judge Lush, who decided the JM and MJ case I recently blogged about. This is another Court of Protection case. The Court of Protection gets a hard time from people (including me), but I am massively in favour of the way this particular Judge is getting stuck into those people who end up being responsible for managing the affairs of someone lacking capacity and end up enriching themselves.

The Public Guardian v C 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/2965.html

Miss Buckley entered into an Lasting Power of Attorney (LPA) in which she appointed her niece, C, to be her sole attorney. Miss Buckley lives in a nursing home, for which the fees are just under £1000 per week. The nursing home became concerned about what Miss Buckley was saying about the way C was managing her affairs and an investigation took place.

The application was accompanied by a witness statement made on 22 October 2012 by Yun Ding, an investigation officer with the OPG, which can be summarised as follows:

(1) Miss Buckley’s house had been sold for £279,000 on 28 April 2011.

(2) Between 17 January 2011 and June 2012 the attorney had withdrawn £72,000 from Miss Buckley’s funds to set up a reptile breeding business. The attorney claimed that this was a short-term investment which would generate a 20% return over a two year period.

(3) The attorney admitted that she had used at least £7,650 of Miss Buckley’s capital for her own personal benefit.

(4) The attorney said she visited Miss Buckley once a week, but this was contradicted by the nursing home, who said that she had not visited her at all until 16 October 2012, when she appears to have obtained Miss Buckley’s signature on some unknown documentation.

(5) At one stage there had been daily cash withdrawals of £300 (the maximum amount) from Miss Buckley’s Nationwide Building Society account.

(6) The Special Investigation Department at the Nationwide had alerted Social Services in April 2012 and the matter was also referred to the police, who interviewed the attorney in July 2012.

(7) Miss Buckley’s estate may have incurred a total loss of approximately £150,000.

(The withdrawal of the maximum daily amount from the Nationwide is a bit of a telling indicator here)

It seems that a lot of this money was being ‘invested’ in a company which specialises in breeding reptiles (“so… many…jokes. must resist jokes”)

14.On 13 December 2012 Yun Ding made a second witness statement, the primary purpose of which was to exhibit Dr Barker’s report and to update the court on the OPG’s investigation as required by the directions order of 23 October. She concluded the statement as follows:

“From the evidence gathered so far, I estimate that Miss Buckley has contributed at least £87,682.53 towards the reptile investment venture described by C. In the absence of any contrary evidence, the Public Guardian maintains that Miss Buckley’s finances may have been used to heavily subsidize what appears to be a reptile breeding business, without any formal guarantee or security or her share of the alleged investment returns. C also appears to have misappropriated £43,317.47 of her aunt’s estate without obtaining consent, contrary to what she had told the police. I have therefore re-referred this matter back to the police to conduct further enquiries

It certainly seems a distinct possibility that this ‘reptile’ company was C’s own business, or one in which she had a direct financial involvement in. The “investment” led the Judge to give some general principles on investing when doing so under an LPA.

The investment of funds by an attorney

20.There are two common misconceptions when it comes to investments. The first is that attorneys acting under an LPA can do whatever they like with the donors’ funds. And the second is that attorneys can do whatever the donors could – or would – have done personally, if they had the capacity to manage their property and financial affairs.

21.Managing your own money is one thing. Managing someone else’s money is an entirely different matter.

22.People who have the capacity to manage their own financial affairs are generally not accountable to anyone and don’t need to keep accounts or records of their income and expenditure. They can do whatever they like with their money, and this includes doing nothing at all. They can stash their cash under the mattress, if they wish and, of course, they are entitled to make unwise decisions.

23.None of these options are open to an attorney acting for an incapacitated donor, partly because of their fiduciary obligations and partly because an attorney is required to act in the donor’s best interests. The Mental Capacity Act 2005, section 1(5), states that, “an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.”

24.Mr Justice Lewison (as he then was) commented on this point in Re P (Statutory Will) [2009] EWHC 163 (Ch), [2009] COPLR Con Vol 906. At paragraph 42 he said:

“I would add that although the fact that P makes an unwise decision does not on its own give rise to any inference of incapacity (section 1 (4)), once the decision making power shifts to a third party (whether carer, deputy or the court) I cannot see that it would be a proper exercise for a third party decision maker consciously to make an unwise decision merely because P would have done so. A consciously unwise decision will rarely if ever be made in P’s best interests.”

25.Attorneys hold a fiduciary position, which imposes a number of duties on them. Like trustees and other fiduciaries, they must exercise such care and skill as is reasonable in the circumstances when investing the donor’s assets and this duty of care is even greater where attorneys hold themselves out as having specialist knowledge or experience.

31.Two of the most important factors when considering the suitability of investments are the donor’s age and life expectancy. Most donors are older people. Their average age is 80 years and 11 months and, in this respect Miss Buckley, who is 81½, is a typical LPA donor.

32.Short-term investment codes are generally more appropriate where an individual has an anticipated life expectancy of five years or less, and the guidance to court staff suggested that, “without clear medical evidence it would be prudent to consider a life expectancy of less than five years for new patients aged 80 or over.

And

 The second point is that, subject to a sensible de minimis exception, where the potential infringement is so minor that it would be disproportionate to make a formal application to the court, an application must be made to the court for an order under section 23 of the Mental Capacity Act 2005 in any of the following cases:

(a) gifts that exceed the limited scope of the authority conferred on attorneys by section 12 of the Mental Capacity Act;

(b) loans to the attorney or to members of the attorney’s family;

(c) any investment in the attorney’s own business;

(d) sales or purchases at an undervalue; and

(e) any other transactions in which there is a conflict between the interests of the donor and the interests of the attorney.

 The final point is one that has been made in the past, but needs to be repeated. Attorneys should be aware of the law regarding their role and responsibilities. Ignorance is no excuse. I am not suggesting that attorneys should be able to pass an examination on the provisions of the Mental Capacity Act 2005, but they should at least be familiar with the “information you must read” on the LPA itself and the provisions of the Mental Capacity Act 2005 Code of Practice. Section 42(4)(a) of the Act expressly stipulates that it is the duty of an attorney acting under an LPA to have regard to the code.

 Commenting on the conduct of an attorney in Re W (Enduring Power of Attorney) [2000] Ch 343, at page 350 Mr Jules Sher QC said:

“… she ought to have known the law if she was to take on the responsibility of such an important fiduciary position, particularly as one of the few things expressly stated in part of the power itself is the following sentence: “I also understand my limited power to use the donor’s property to benefit persons other than the donor.””

A person taking on that responsibility to manage the affairs of a vulnerable person has to make themselves familiar with the limits on those powers, and ignorance of the law is no excuse.

It is not, therefore a massive surprise that the Judge didn’t consider that C had been properly conducting affairs on behalf of Miss Buckley (incidentally, I think it slightly unfair that the innocent Miss Buckley is named, whereas C gets a cloak of anonymity here). There’s some lovely judicial understatement here “One can hardly describe a man who runs a reptile breeding business as someone who is qualified to give investment advice”

 I am satisfied that C has contravened her authority and has acted in a way that is not in Miss Buckley’s best interests.

 Even if one were to be generous and believe C and accept at face value her description of the way in which she has applied Miss Buckley’s funds as an ‘investment’, it was a highly unsuitable investment to make and she broke almost every rule in the book in making it.

 She did not obtain and consider proper advice from someone who is qualified to give investment advice. One can hardly describe a man who runs a reptile breeding business as someone who is qualified to give investment advice by his ability in and practical experience of financial and other matters relating to investment.

 The investment was very high risk. When investing funds on behalf of older people, the perceived wisdom is that the investments should be safe and that very little risk is acceptable as can be seen from the short-term investment tables set out above. Even when investing funds long-term on behalf of a younger person, a hazardous and speculative investment of this kind would have been inappropriate for anyone in a fiduciary position to make.

 The attorney invested in her own business, which was in breach of her fiduciary duty. Paragraph 7.60 of the Mental Capacity Act Code of Practice states that:

“A fiduciary duty means attorneys must not take advantage of their position. Nor should they put themselves in a position where their personal interests conflict with their duties. They also must not allow any other influences to affect the way in which they act as an attorney. 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.”

 The investment was also made in the attorney’s name. This was in breach of the guidance to attorneys given in paragraph 7.68 of the Code of Practice to keep the donor’s money and property separate. The attorneys’ admission in paragraph 16 of her witness statement – “I would like to state that I was not aware that the investment had to be made in her name and was concerned about signing on her behalf – is no excuse.

 C’s use of £43,317.47 (according to Yun Ding’s second statement) of Miss Buckley’s capital for her own personal benefit was way beyond the very limited authority to make gifts conferred on attorneys by section 12 of the Mental Capacity Act 2005. The attorney’s comments paragraphs 17 and 18 of her witness statement are no defence:

“I agree that my aunt lacks capacity to manage her own financial affairs and in my view she has become increasingly confused and is unable to understand the information relevant to deciding how to handle her finances or retain that information. … I admit that some of the money was used for my own benefit but only with my aunt’s permission.”

 As regards Miss Buckley’s capacity, I am satisfied that she is incapable of revoking the LPA herself. I accept the opinion of the Court of Protection Special Visitor, Dr Andrew Barker, who stated:

“She was unable to understand the nature and effects of an LPA to a sufficient degree or to choose an attorney, was not aware of her financial dealings and could not recall detail sufficiently well or concentrate long enough to weigh information in the balance to come to decisions about an attorney or to direct or instruct an attorney.”

This is what Miss Buckley’s friend Shirley said

“I am so worried that (Miss Buckley’s) money will get stolen and that she won’t be able to stay in the nursing home. I have been asked not to get in touch with C both by social services and by the police. I find this very difficult. I must have given two years of my full attention – selling her house for her – setting up the Nationwide to pay the (nursing home) monthly. Finding a decent retirement residence (from which she had to move for health reasons) then I found her the nursing home but it’s nearly £1000 per week. She cannot afford for her money to be taken. She needs every penny.”

Very very true. A shame that C could not see things in that light at all. I hope that she and the reptiles are very happy together.

5 Comments

Posted in case law, court of protection and tagged investing on behalf of vulnerable people, lasting power of attorney, the duties under lasting power of attorney, the public guardian v c 2013. Bookmark the permalink.

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Tag Archives: lasting power of attorney

Financial abuse, Court of Protection

Incapacity of the Monarch (but really about Lasting Power of Attorney)

Lasting power of attorney – revocation.

Seeking costs against the Public Guardian in a financial safeguarding case

Manuela Sykes

You say “Investing”, I say “embezzling”, let’s call the whole thing off

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