Analysis
DP was born in 1925, was an only child, and had worked for thirty nine years for the BBC World Service at Bush House, the Aldwych, London, WC2. She was the donor of a lasting power of attorney (LPA) in favour of JM which had been registered on 20 February 2012. JM had known DP since 2006 and was formerly her gardener. The public guardian applied for an order under s22(4)b Mental Capacity Act
2005 revoking the LPA.
Held
The only evidence in respect of DP’s capacity came from a visitor, who opined in her report dated 28 March 2013 that DP did not have capacity to decide whether to revoke or suspend an LPA. However, there was a letter dated 21 May 2012 stating that the healthcare professionals had doubted whether DP had the capacity to create the LPA in the first place. There was no evidence of any improvement since the visitor’s assessment. The judge was satisfied on that basis that DP lacked the capacity to revoke the LPA.
By making a gift of £38,000 to himself, JM had contravened the provisions of s12 MCA
2005, which set out the limited circumstances in which an attorney may make gifts to persons related or connected to the donor. For a gift of such magnitude, the attorney should have applied to this court for formal authorisation, pursuant to s23(4) MCA
2005.
In failing to keep proper accounts and records, the attorney was in breach of his fiduciary duties.
In paying himself £20 daily for 365 days’ house clearance and £20 weekly for a year’s gardening, JM contravened his authority by awarding himself a salary. The relevant section of the LPA relating to paying your attorneys had been left blank.
Having regard to all of the circumstances, the court was satisfied that HM behaved in contravention of his authorities and inconsistently with DP’s best interests. A panel deputy would be appointed in substitution for the attorney.
Gifts under DP’s will to Brockwood Cemetery and the Russian Orthodox Church had failed in that on the sale of her house during her lifetime, they had adeemed. In the premises, the court imagined that one of the first tasks for the panel deputy would be to apply to the court for an order authorising the execution of a statutory will, giving effect to DP’s wish to benefit the charities.
JUDGMENT SENIOR JUDGE LUSH [1] The practice guidance on transparency in the Court of Protection, issued by the President on 16 January 2014, requires judges to give permission for judgments to be published in ‘any case where the issues include whether a person should be restrained from acting as an attorney or a deputy or …Continue reading "Re DP, The Public Guardian v JM Case no: 12351387"