Analysis
This was an application by the public guardian (OPG) for the revocation of a lasting power of attorney (LPA) for property and financial affairs.
ARL was born in 1929 and has resided in a nursing home since 5 September 2012. On 23 August 2012 she executed an LPA for property and financial affairs, appointing her adopted son (ICL) and her adopted daughter (JJT) jointly and severally as her attorneys. The LPA was registered on 30 October 2012.
On 18 July 2014, concerns were raised with the OPG regarding ICL’s management of ARL’s property and financial affairs. The OPG contended that:
- (a) There was a debt of unpaid care home fees in the sum of £39,000 which ICL refused to pay on the basis that ARL should be receiving NHS continuing healthcare.
- (b) ICL was claiming compensation from Hertfordshire County Council on the basis that ARL had been placed in the nursing home without his consent.
- (c) In May 2013, ICL sold ARL’s house for £265,000 and used £174,950 from the net proceeds to purchase a flat in his own name. The £90,000 difference between the net sale proceeds and purchase price of the flat was credited to his own business account, rather than to ARL’s account.
- (d) While the new property was let, none of that income was received by ARL. ICL simply used it as another income stream for himself.
- (e) ICL was not providing ARL with an adequate personal allowance.
- (f) It was thought that ICL had not visited ARL since 2013.
- (g) On the OPG requesting an account of ARL’s affairs, ICL refused to provide further information, stating that his responsibilities under the LPA had now become too onerous. He only provided bank statements from October 2012 to October 2013 and revealed that he had spent at least £6,641 in a way which was not in ARL’s best interests.
- (h) A Court of Protection general visitor met ARL on 15 August 2014 and confirmed that ARL had dementia and lacked capacity to revoke the LPA.
OPG sought an order (a) revoking the LPA, (b) directing that a panel deputy make decisions on ARL’s behalf in relation to her property and affairs and (c) directing ICL to provide the new deputy with full details of ARL’s financial affairs, specifically in relation to the proceeds from the sale of her house.
JJT supported the OPG’s application and stated that her relationship with ICL had completely broken down and that he would not let her have any access to ARL’s bank accounts.
The estate practitioner (Lyn Parkin) who had drawn up the LPA, witnessed ARL’s signature and was the Part B certificate provider, was added to proceedings and contended that the LPA should be revoked but that ARL’s daughter, JJT, and herself should be appointed as co-deputies and that ICL be accountable for his actions and reimburse ARL’s estate in full.
ICL opposed the OPG’s application and contended that he had tried to act in ARL’s best interests at all times. He admitted that he had used ARL’s funds for his own personal affairs and for his family outgoings. He borrowed £3,380 of ARL’s funds to pay the legal costs of defending a drink-driving action against him in February 2013, and he used various sums in relation to his son’s deposit and college fees in the USA and to support and visit his son in the USA. He also used some of the funds to pay for works on his former matrimonial home and stated that he could not specifically account for the remainder of £90,050 but was sure that, save for £2,500 borrowed by JJT, it was used to cover the outgoings of his family. He stated that he had not realised that the property was held in his name and would be happy to transfer it into ARL’s name. At the hearing, counsel for ICL submitted that it would be a grave breach of ARL’s Art 8 rights to revoke an LPA which she had made when she had capacity to do so.
Three days before the hearing, ICL sought an adjournment on the basis that (a) he was not fit to attend the hearing, (b) that the OPG had failed to attempt mediation as ordered by the court and (c) he may have grounds to bring a claim against Hertfordshire County Council for unlawful deprivation of ARL’s liberty. Senior Judge Lush refused the application for adjournment on the basis that (a) there was no need for ICL to attend the hearing, (b) mediation is generally unsuitable in safeguarding proceedings, such as this case and (c) it was not in ARL’s best interest to delay resolution of the matter.
The OPG confirmed at the hearing that while a panel deputy was originally requested, he had no objection to the appointment of JJT and Lyn Parkin as joint deputies.
Held:
- 1) In a dispute regarding NHS continuing healthcare, an attorney has a duty to pursue all the standard dispute resolution proceedings and if need be, refer the matter to the ombudsman. However, in the meantime, the attorney should continue to pay the donor’s care fees and if it later comes to light that the donor qualified for NHS continuing healthcare, then the NHS will refund any overpayment of care fees.
- 2) The court was satisfied that ICL had behaved in a way that contravened his authority and was not in ARL’s best interests.
- 3) The court was satisfied that ARL did not have capacity to revoke the LPA herself.
- 4) The revocation of the LPA was in accordance with the law and is necessary for the prevention of crime.
- 5) The LPA should be revoked and Lyn Parkin and JJT should be appointed as ARL’s joint deputies for property and affairs, it being for Lyn Parkin to satisfy the OPG as to the arrangements regarding the money JJT borrowed from ARL.
- 6) A departure from the general rule as to costs in property and affairs cases was justified. ICL’s conduct was appalling and he had been unsuccessful.
7) No order as to costs and Lyn Parkin’s costs should be assessed on standard basis and paid from ARL’s estate.
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