Analysis
Sheila was born on 8 April 1928. She and her husband retired to Powys in the late 1980s. Ronald died in 1998. Sheila’s health began to deteriorate. For many years she resided in a care home, but moved to a nursing home in Herefordshire in 2013 due to her increased care needs. She had one son, Martin, who was retired.
In 2004, Sheila signed an EPA appointing Martin to be her sole attorney. On 9 July 2009, Martin applied to the Office of the Public Guardian (OPG) to register the EPA, having given notice of his intention to do so to Sheila and her four brothers. There were no objections and the EPA was registered on 4 August 2009.
The OPG applied on 31 March 2015 for an order revoking the registered EPA, and inviting the application of a panel deputy to be appointed in his place. The OPG filed a witness statement which stated inter alia that Sheila’s unpaid care fees totalled £29,000, her property had been sold, Martin rarely visited her, and Martin had paid himself £49,143.19 from her funds. It was submitted by the OPG that there were three main issues in the case: (1) Martin’s failure to pay his mother’s care fees; (2) his failure to provide her with a personal allowance; (3) his charges for acting as her attorney were excessive.
Martin was engaged in a dispute with Powys County Council and Powys Local Health Board over Sheila’s care fees. The issue had not yet been resolved. Martin argued that it would not be in Sheila’s best interests to pay them. As to his failure to provide a personal allowance for his mother, he stated that they were charged significant sums for toiletries by the nursing home, and that she did not need colour tinting.
As regards the remuneration he had paid himself, he argued that they were not excessive considering the time he had spent on his battle with Powys LHB. At the hearing Martin stated that he had charged his mother a daily rate of £400 for visiting her and for the work he put into the claims against Powys LHB. This was his usual daily charging rate when he was a self-employed independent consultant prior to his retirement. He also made the general point that there was no need to replace him as an attorney. Because he was her sole heir, there was no need to protect the estate’s financial interests, which were effectively his.
Held:
- 1) One would be hard pressed to find a more callous and calculating attorney, who had so flagrantly abused his position of trust.
- 2) As regards the non-payment of Sheila’s care fees, it was in Sheila’s best interests that he continued to pay her care fees whilst he resolved the dispute with the Powys LHB.
- 3) There was no evidence to support Martin’s suggestion that if his mother’s care fees were paid from now onwards, Powys LHB would seek to avoid refunding moneys owed. The Health Board had acted in good faith and reimbursed any fees that were overpaid in the past. Martin, on the other hand, had persistently acted in bad faith.
- 4) Sheila did not expressly provide for Martin to be remunerated and if he had intended to charge a daily rate of £400 for acting as her attorney, he should have applied to the court for authorisation pursuant to para 16(2)(b)(iii) of Sch 4 to the Mental Capacity Act 2005. By not doing so, he behaved in a way that contravened his authority and was not in the donor’s best interests.
- 5) Charging one’s elderly mother a daily rate of £400 for visiting and acting as her attorney was repugnant. A panel deputy would, for the first time in eleven years, place Sheila at the centre of the decision-making process, rather than view the preservation and enhancement of Martin’s inheritance as the paramount consideration.
6) Martin was unsuitable to be Sheila’s attorney, and the court would revoke the EPA and direct the public guardian to cancel its registration. A panel deputy was to be invited to apply to be appointed as Sheila’s deputy for property and affairs.
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