Public Guardian v CT & EY [2014] EWCOP 51

Analysis

CT was born in 1929. He has a wife and two children: a son and a daughter (EY).

On 19 May 2013, CT suffered a stroke, which resulted in left hemiplegia and impaired vision. He was admitted to hospital where he was diagnosed as having vascular dementia.His stroke precipitated a rift within his family, with CT and his daughter aligned on one side and his wife and son on the other.

On 18 June 2013, CT executed a lasting power of attorney (LPA) for property and affairs appointing EY as his attorney and another person as a replacement attorney and named nobody to be given notice of an application to register the LPA. On 21 June 2013, CT’s son objected to the registration but as he was not a named person, he was not entitled to object. The LPA was registered on 2 August 2013. On 18 November 2013, CT moved in with EY and her partner.

On 16 July the Public Guardian (OPG) applied under s48 of the Mental Capacity Act 2005 for directions relating to CT’s mental capacity to make decisions in relation to his finances and property. An investigations officer with the OPG stated that:

1. (a) on 13 June 2013, CT had severed the joint tenancy of the matrimonial home which he and his wife owned, ceased paying utility bills and transferring housekeeping money to his wife and closed their joint bank account;
2. (b) in September 2013, CT’s son raised concerned with the OPG;
3. (c) in September 2013, CT also applied to the Land Registry to register the matrimonial home in his sole name;
4. (d) on 30 September 2013, a Court of Protection general visitor saw CT in hospital and thought he could suspend or revoke the LPA but would need considerable support in doing so;
5. (e) Havering social services raised a safeguarding alert;
6. (f) The OPG asked EY for an account of her dealings however she replied that her father still had capacity and therefore the OPG’s enquiries were an invasion of his privacy;
7. (g) In January 2014, the OPG commissioned a visit from a Court of Protection special visitor but EY and her partner refused to let him visit. Although, the special visitor was able to examine CT’s medical records and concluded that CT did have capacity (i) to make the LPA and (ii) to sever the joint tenancies but it was impossible to provide opinion as to his current capacity.

EY objected to the application on the basis that CT had capacity to make decisions in relation to his finances and property in September 2013 and that he underwent an assessment in November 2013 in which he was again assessed as having capacity to make the decision as to his future place of residence after discharge. EY contended that there was no valid reason why CT should not be presumed to have capacity at this time and asked that the application be dismissed and the OPG be ordered to pay the respondents’ costs.

At a directions hearing on 20 August 2014, the court made an order:

1. (1) declaring that CT had capacity to execute the LPAs and to sever the joint tenancy;
2. (2) directing the OPG to serve the application papers on CT;
3. (3) requiring the parties to identify a single joint expert by a deadline and in default an expert named in the order would prepare a report;
4. (4) requiring the expert to assess CT’s capacity in the following nine areas:
5. i. CT’s capacity to be a party to the legal proceedings;
6. ii. CT’s capacity to revoke or suspend the LPA;
7. iii. CT’s capacity to make a new LPA;
8. iv. CT’s capacity to make decisions relating to his property and financial affairs;
9. v. CT’s capacity to give instructions to his attorney in relation to his property and affairs;
10. vi. CT’s capacity to instruct his attorney to provide an account of her dealings;
11. vii. If CT now lacks the capacity to make decisions in relation to his property and affairs, when did he lose capacity?;
12. viii. If CT now lacks the capacity to make such decisions, what are his present wishes regarding his attorney and whether he is content for her to continue to manage his affairs now and in the future?;
13. ix. If CT now lacks the capacity to make decisions regarding contact and residence, what are his present wishes regarding contact and residence?;
14. (5) listing the matter for a final hearing.

The expert named in the order examined CT and concluded that while CT probably does have cerebrovascular dementia and is subject to recurrent episodes of delirium, he has capacity to manage his affairs when he is at his best and to revoke or make an LPA and is able to communicate his decisions, although his capacities can be enhanced by disinterested advice. When he is delirious, he does not have any of the capacities.

The parties agreed that the application should be dismissed but disagreed on the proposed costs order. The OPG sought no order as to his own costs. EY sought an order that her costs should be paid by the OPG.

The OPG opposed EY’s application for costs and contended that if EY had complied with the OPG’s requests then a medical report would have been completed sooner at no expense to CT.

EY contended that the OPG’s conduct of their investigation was such that neither CT nor EY should bear the costs. EY asserted that the OPG conducted the investigation poorly and in a disproportionately heavy-handed manner without regard to the limits of its statutory jurisdiction to do so or the presumption of capacity, and concluded without any sufficient evidence that EY had exercised her powers under the LPA.

Held:

1. 1) The OPG’s conduct was by no means disproportionate and did not even approach the threshold as to when the court may be justified in penalizing a public body in costs (G v E (Costs) [2010] EWHC 3385 (Fam) referred to).
2. 2) The OPG did not act in disregard of the mental capacity act or in breach of CT’s rights under the European Convention on Human Rights.
3. 3) EY’s insinuation that the Court of Protection special visitor is not independent or impartial is unwarranted.
4. 4) Having regard to all the circumstances, it would be unjust to penalise the OPG in costs.
5. 5) Regarding EY’s conduct before and during the proceedings, EY and her partner refused without reasonable cause to let the special visitor visit or even speak to CT over the phone. A departure from the general rule as to costs was justified because EY’s conduct before and during proceedings was aggressive and disingenuous and increased the costs of both sides to far greater than they would otherwise have been.

6) No order as to costs (though the OPG and EY are jointly liable to pay a half of the expert’s fee.)

JUDGMENT LUSH SJ: [1] This is the first occasion on which a respondent has sought an order for costs against the Public Guardian in respect of a safeguarding application regarding the respondent’s conduct as the donee of a lasting power of attorney. The background [2] CT was born in 1929 and formerly worked for Ford …

Continue reading "Public Guardian v CT & EY [2014] EWCOP 51"