Analysis
On 15 June 2009, Mrs Harcourt executed a lasting power of attorney (LPA) for property and affairs in which she appointed her daughter (A) to be her sole attorney. The LPA was registered with the Office of the Public Guardian (OPG) on 13 August 2009. In July 2011 the manager of Mrs Harcourt’s care home contacted the local county council expressing concerns that A had not paid Mrs Harcourt’s care home fees and that she gave her very little pocket money. The manager also expressed concerns regarding loans and credit cards which had recently been taken out in Mrs Harcourt’s name. The county council brought the concerns to the OPG who opened an investigation.
The OPG then made an application to the court in January 2012 and in February 2012 A was ordered to provide documentation relating to the management of Mrs Harcourt’s affairs by 22 February 2012. Following applications by her A was granted several extensions of time for compliance with this order. A then sought a further and indefinite extension and to have the final hearing adjourned indefinitely. These applications were refused. She did not attend the final hearing on 19 July 2012 at which the OPG sought the revocation of the LPA and her removal as Mrs Harcourt’s attorney.
Held (revoking the LPA):
- (1) In cases such as that before the court it was never particularly easy to apply the checklist of factors contained at s4 Mental Capacity Act 2005 in assessing what was in Mrs Harcourt’s best interests but this did not mean that decisions such as requiring an attorney to account for revocation of the LPA are not in her best interests.
- (2) It was reasonable to regard as relevant the fact that A was an auditor and not a typical member of a family acting as attorney but a person whose job involves the checking of financial records. As such, it would be reasonable to expect a higher standard from her in terms of an awareness of her fiduciary duties and the need for exactitude and promptness in the preparation and delivery of accounts. Another relevant factor was that Mrs Harcourt’s finances were relatively straightforward.
- (3) The factor of magnetic importance in determining what was in Mrs Harcourt’s best interests was that her property and affairs should be managed competently, honestly and for her benefit. Although the OPG had been unable to complete its investigation, what it had managed to unearth had resulted in a successful challenge to A’s competency and integrity. A was deliberately obstructing any investigation into Mrs Harcourt’s financial affairs by the OPG and had failed to comply with an order of the court. By refusing to cooperate with the court and the OPG she was not acting in A’s best interests. Her failure to comply with the court order was a relevant factor to take into account pursuant to s42(5) Mental Capacity Act 2005. The LPA would be revoked and a replacement deputy for property and affairs appointed.
- (4) The court was required to consider the Human Rights Act 1998 and whether its decision amounted to a violation of the European Convention on Human Rights and Fundamental Freedoms 1950. Articles 6 and 8 were engaged. However, A had been given ample opportunity to explain her actions prior to her request for an indefinite adjournment and the revocation of the LPA and the appointment of a deputy was a necessary and proportionate response for the protection of Mrs Harcourt’s right to have her financial affairs managed competently, honestly and for her benefit, and for the possible prevention of crime.
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