Re RM [2016] EWCOP 25 (Fam)

Analysis

In 2014 Roy and his wife had each executed a Lasting Power of Attorney (‘LPA’) for property and financial affairs in which they appointed their spouse, son (Philip), and daughter (Sue) jointly and severally to be their attorneys and an LPA for health and welfare in which they appointed Sue to be their sole attorney. Roy’s wife died in August 2015 following which the Office of the Public Guardian (‘OPG’) received a complaint about Sue’s conduct and opened a formal investigation. A Court of Protection (‘CoP’) general visitor visited both Roy and Sue and reported (i) that Roy did not have mental capacity to revoke or suspend the LPAs (ii) that as far as she could tell Philip was acting appropriately as attorney although because of Sue’s attitude he was making decisions on finance and property without involving her and (iii) she had grave concerns about Sue’s abilities. During the visit with Sue she found her to be very emotional, in a high state of agitation, irrational and unwilling to accept the information given to her and obsessive about Philip and his wife and the carer living with and supporting Roy. She concluded that, in her opinion, Sue’s continued involvement in Roy’s financial affairs was not workable due to her poor relationship with Philip and that she had doubts about Sue’s ability to make decisions in her father’s best interests in relation to health and welfare.

OPG applied for a partial revocation of the LPA for property and financial affairs and the revocation of the LPA for health and welfare. Philip consented to the application and Sue opposed it. Further, Sue put forward proposals whereby she felt she would be able to work with Philip which included consultation with Roy regarding decisions and communication between Sue and Philip through her solicitors.

Held, allowing the application for partial revocation of the LPA for property and financial affairs and dismissing the application for the revocation of the LPA for health and welfare:

The court was not concerned with whether Sue was suffering from a mental, personality or behavioural disorder; it was concerned with Sue’s conduct rather than what caused it. However some allowance must be made for the fact that most of the descriptions of her behaviour related to a period of less than three months after she had experienced a major psychosocial stressor as a result of the terminal illness and death of her mother. Inevitably these events affected her social and emotional functioning, at least temporarily. Her conduct at the hearing was not as remarkable as that described by the CoP general visitor.

1. 1) In order to revoke either LPA, the court must be satisfied that Sue had acted in a manner that either contravened her authority or was not in Roy’s best interests and, even if those circumstances arose, the court had a discretion as to whether to revoke either LPA. Sue had not contravened her authority under either LPA and therefore the only issue was whether she had behaved in a way that was not in Roy’s best interests.
2. 2) As regards the health and welfare LPA, Sue would be allowed continue as Roy’s attorney:
3. 2.1. It was obvious she loved Roy, would never dream of acting other than in his best interests, saw him twice a week and took him to various appointments.
4. 2.2. Her awareness of, and genuine eagerness to apply the supported decision-making provisions in ss1(3) and 4(4) of the Mental Capacity Act 2005 (MCA) was a factor of magnetic importance compelling the court to allow her to continue to act as Roy’s attorney for health and welfare.
5. 2.3. An important factor was that Roy and his late wife had specifically chosen Sue to be sole attorney for health and welfare, whereas in their LPAs for property and financial affairs they appointed their spouse, Philip and Sue to act jointly and severally. The distinction was clearly relevant and it should be treated with respect.
6. 2.4. An attorney for health and welfare had no authority to make decisions in circumstances other than those where the donor lacks, or the attorney reasonably believes that the donor lacks, capacity (s11(7)(a) MCA). In view of Sue’s commitment to supported decision-making, the court trusted her intuition on when she needed to intervene and make a decision on Roy’s behalf.
7. 2.5. Further the vast majority of personal welfare decisions could be taken informally and collaboratively. Sue’s dereliction for eight weeks after her mother’s death made little or no difference as far as decisions regarding Roy’s health and welfare were concerned (either because he could have made the decision himself or because others could have made the decision for him pursuant to s5 MCA).
8. 3) As regards the property and financial affairs LPA, this should be partially revoked to be limited to Philip acting as sole attorney:
9. 3.1. Decisions relating to property and financial affairs tend to be more formal and generally do not require the same degree of collaboration with third parties, such as healthcare and social care professionals as personal welfare decisions. Sue’s dereliction of her duties for eight weeks could have had a detrimental effect on the administration of Roy’s estate, if she had been his only attorney for property and financial affairs.
10. 3.2. Sue’s continued involvement as one of Roy’s attorneys would not be in his best interests because of the hostility between her and Philip had impeded the proper administration of his estate. The hostility was such that they deliberately tried to avoid contact with one another, irritated each other and simply could not work together. It had led to Roy’s bank accounts being frozen, prevented them obtaining a grant of representation to their late mother’s estate, of which Roy was the primary beneficiary and had led to communications being channelled through Sue’s solicitors, at her insistence, causing delay in the decision-making process and unnecessary expense for Sue.
11. 3.3. Philip had acted reliably and sensibly in difficult circumstances and seemed able to interact satisfactorily with everyone who had an interest in Roy’s welfare other than Sue.
12. 3.4. There was no reason to believe the revocation of Sue’s appointment would cause significant distress to Roy.
13. 3.5. To revoke the LPA in its entirety and appoint a deputy would be too violent a reaction to the circumstances and would not be the least restrictive intervention.

SENIOR JUDGE LUSH: [1] This is the Public Guardian’s application for: (a) the partial revocation of a lasting power of attorney (LPA) for property and financial affairs, and (b) the revocation of an LPA for health and welfare. The background [2] Roy was born on 23 August 1925 and was formerly a radar engineer. [3] …

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