Analysis
AMH was born on 31 October 1936. She lived with her husband in Greenwich until 1999, when they retired and moved to Kent. They had three children, Audrey, Kevin, and Robbie. Robbie died in 2005. Robbie’s son Rocky lived with AMH between 1990 and 2013, and was very close to her. AMH’s husband died in 2007. AMH suffered from Lewy Body dementia, chronic obstructive pulmonary disease and epilepsy, and lived in a nursing home in Westgate-on-Sea. Her care was funded by NHS Continuing Health Care.
On 18 March 2002, AMH and her husband made mirror wills in which they left their residuary estate to Rocky with a gift over to his sister, Xatasha. In 26 July 2012, AMH transferred ownership of her property in Kent into her and Rocky’s joint names. In January 2013, she executed LPAs, one for health and welfare in favour of Kevin, his wife, and their daughters jointly and severally, and one for property and affairs in favour of Audrey and Rocky. These were registered in April 2013. Rocky was removed as an attorney in 2013, as Rocky lacked capacity to act.
AMH owned a half share in the bungalow which was worth a total of £120,000-£130,000, and she had savings of around £3,000. Her income came solely from Incapacity Benefit and state Retirement Pension, totaling £655.20 a month. Her expenditure amounted to £583.63 per month.
The OPG made an application on 26 March 2015 asking for an order that Audrey account for her dealings with the financial affairs of AMH from 25 April 2013 within 28 days, and subject to that, for revocation and cancellation of the registered LPA leading to the appointment of a panel deputy in her place. The application was based on concerns about her failure to disclose financial information, her purchase of unsuitable items for AMH, and concerns about the family’s behaviour raised by the manager of AMH’s care home.
Senior Judge Lush made an order on 16 April 2015 requiring the OPG to serve papers on Audrey by 1 May 2015, for Audrey to provide a full set of accounts by 29 May, for the OPG to advise the Court by 15 June whether the accounts were satisfactory, and the file to then be referred to a judge. Audrey sought an extension of time, and objected to the OPG’s application asking to stay as AMH’s attorney so that AMH’s desires wishes and choices would be respected. Kevin filed an acknowledgment of service stating that he opposed the application and asked to be appointed as deputy for property and affairs in place of a panel deputy.
Audrey provided the relevant information on 25 May 2015. The OPG noted that there had been unnecessary expenditure of £253 on food and clothing for AMH, and registered concerns that her assets were not been used in her best interests. She was not saving AMH’s surplus income. The OPG noted that this was more a consequence of her ignorance as opposed to her own self dealing. The OPG’s view was that Audrey would benefit from guidance in her role, and therefore asked the Court to revoke the LPA and appoint Audrey as deputy with support from the OPG.
Held:
- 1) Audrey had strange ideas about the functions and duties of an attorney acting under an LPA. She had no knowledge about the principles of the Mental Capacity Act 2005, best interests decision making, and fiduciary duties of an attorney under an LPA for property and financial affairs, nor did she have any desire to learn.
- 2) Audrey’s request that the Court respect her mother’s rights was really a demand that the Court should respect her right to do as she pleased.
- 3) It would be neither sensible nor in AMH’s best interests to leave Audrey in unfettered control of her property and financial affairs. The OPG had no statutory duty to supervise attorneys acting under an LPA, but he did have an obligation to supervise deputies appointed by the Court under s58(1)(c) of the Mental Capacity Act 2005.
- 4) Audrey had behaved in a way that was not in AMH’s best interests and the LPA should be revoked with the appointment of her as deputy for AMH’s property and affairs.
5) This would enable the Court to respect AMH’s rights, will and preference as regards her choice of decision-maker, but allowed the court to put in place appropriate, effective and proportionate safeguards to prevent Audrey from continuing to make unwise decisions which were not in AMH’s best interests.
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