Re AB (Revocation of Enduring Power of Attorney) [2014] EWCOP 12

Analysis

AB was born in 1932, resides in a care home and has dementia. In June 2007 she signed an EPA appointing her nephews MD and WD to be her attorneys on a joint and several basis. In September 2007 the EPA was registered.

In March 2007 MD and WD bought a property for AB to live in. They charged her rent for the six months that she lived there and she also paid the refurbishment costs of the work carried out by MD.

In January 2013 Brent Council wrote to the OPG expressing concerns about arrears of £23,000 in care home fees.

An investigation by the OPG showed that in February 2011 £15,000 of AB’s funds were used to buy the mother of MD and WD (AB’s sister-in-law) a car. In February 2011 the attorney loaned their brother £10,000 and then a further loan for £40,000 in September 2011 both from AB’s funds. There were also unexplained withdrawals of £60,000 from AB’s funds.

In January 2014 the Public Guardian applied for an order to revoke the EPA and for Brent Council to be appointed as her deputy.

The attorneys filed witness statements and appended accounts which they claimed had been signed off by an accountant.

Brent Council wished to have the EPA revoked and felt that if a panel deputy was appointed that they would have to deal with the attorneys and the recovery of the funds and it was not in her best interest to incur further unnecessary expense. They also wanted declarations in respect of the car monies, the loans to their brother and unaccounted expenditure of £32,000 that they were all outside the attorneys’ authority.

Held (revoking the EPA and appointing Brent Council as deputy):

1. 1) It is not possible to have any confidence in the figures provided by the attorneys. There is no balance sheet and the full details of her assets and liabilities are unclear. The accounts have not been signed off by an accountant. Therefore it is not possible to make a declaration quantifying the loss caused by the attorneys.
2. 2) Any attorney acting where the donor is owed £60,000 by family members but has debts of £49,000 has made a hash of managing and administering her finances.
3. 3) There has been an intermingling of funds and the attorneys have given priority to their own interest and those of other family members over the interests of AB.
4. 4) The attorneys exceeded their authority in terms of gifts made. However gifts and donations totalling £10,500 over six and a half years may not have been unreasonable having regard to all the circumstances.
5. 5) The gift of the car exceeded their authority.
6. 6) Both attorneys breached their fiduciary duties in several ways and are unsuitable to be AB’s attorneys. The EPA should revoked.
7. 7) The appointment of an independent professional deputy would be disproportionate due to costs. Brent Council is best placed to act as deputy as they are already funding the bulk of AB’s care costs.

JUDGMENT SENIOR JUDGE LUSH [1] This is an application for the court to revoke an enduring power of attorney (EPA) on the ground that, having regard to all the circumstances, the attorneys are unsuitable to be the donor’s attorneys. [2] In accordance with the president’s guidance on the publication of judgments [2014] COPLR 78, unless …

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