TH v JH
 [2018] WTLR 693

WTLR Issue: Summer 2018 #172

TH

V

1. JH

2. OCC

3. MH (as executor and trustee of the estate of EH, deceased)

4. AT (as executor and trustee of the estate of EH, deceased)

5. HH

Analysis

The applicant, TH, the donee of an enduring power of attorney for the property and 
affairs of his father, HH, applied for retrospective approval of payments and gifts 
made between 2011 and 2017 in the sums of £88,366 in favour of the applicant and 
his family, and £15,196 in favour of his brother JH, the first respondent, and his family. 
JH opposed approval of all sums save for £30,000.


HH lacked capacity and was unable to participate in any meaningful way in 
decisions about his welfare or property or affairs. He required constant care from 
August 2010. TH provided sporadic care between July 2013 and January 2015, after 
which he moved to England to become HH’s live-in carer until October 2017 when 
HH entered a care home permanently. Both HH and his late wife had expressed the 
wish that gifts to their two sons should be equalised.


The Court heard that TH had treated his father’s bank accounts as his own, 
for the benefit of himself and his wider family. He had given a bank card for 
HH’s account to his wife. From December 2014 he had paid himself sporadic 
‘salary’ payments and these became regular from late 2015. TH had kept no 
accounts, records or schedules of payments in respect of his use of HH’s 
funds.


It was agreed at trial that HH’s property should be sold and a professional deputy appointed to manage his affairs.


The following issues arose:


A. Was the applicant entitled to recover a proportion of notional commercial rates in respect of the care actually provided to HH?


B. What payments should be approved?


C. What order should be made in respect of any payments not approved?


D. What was the appropriate order as to costs?


Held


1) Although it may in some circumstances be appropriate to approve payments to family members in respect of gratuitous care where they represent a saving on the cost of professional care – OPG Practice Note PN7 – it did not follow that amounts paid out to an attorney up to a limit of a percentage of the cost of commercial care should be ratified without further consideration. The correct approach was to scrutinise the payments made and whether they were made, or the applicant reasonably believed they were made, in the best interests of the protected party. [56]


2) TH’s haphazard management of HH’s affairs and lack of transparent accounting, whilst understandable from his family history, were not excusable from an attorney, which office imposed a stricter duty and a responsibility to ensure that his father had sufficient funds to meet all of his needs both then and in the future, that TH was not paying himself more than guidelines would suggest is reasonable, and that he kept a careful account of all expenditure and remained mindful of his parents’ wish that gifts to him and his brother should be equalised.


3) Approving payments to TH in the total sum of £72,820.29, the Court considered in particular that:


a. Payments of £15,000 between February 2011 and June 2013 were reasonably made in the best interests of HH, in accordance with his expressed wishes that his family should be with his wife on her deathbed, and that gifts between his sons should be equalised; and


b. Payments of £47,320 in respect of personal care provided by TH between 
January 2015 and May 2017 should be approved, despite their haphazard manner 
of payment. The care provided was of a good standard and was a significant saving 
on commercial care costs.


4) The gifts to other family members, whose approval was not opposed, would be 
approved.


5) It was not in HH’s interests to pursue TH for the non-approved sums, which should be accounted for from TH’s share of the residuary estate of HH and if that share is insufficient to cover them, should be treated as a debt owed by TH to the estate of HH.



6) As to costs, TH had not acted in bad faith and had obtained approval for most of the payments sought. There was no reason to disapply the usual rule in r.19.2 COPR 2017 that the costs should be paid by P or charged to P’s estate.


<![CDATA[ JUDGMENT
 VINCENT HHJ
 Introduction and parties’ positions
 [1] HH is 95 and lives in a care home. He has two sons, TH, the applicant, and JPH, the first respondent. Their relationship is fraught, and appears to have been so for very many years. 
 [2] HH was diagnosed with Alzheimer’s disease in August 2010. …
This content is only available to members.

Counsel Details

Miss Bryony Robinson (Ten Old Square, London WC2A 3SU, tel 020 7405 0758, e-mail clerks@tenoldsquare.com), instructed by Bircham Dyson Bell solicitors (50 Broadway, Westminster, London SW1H 0BL, tel 020 7227 7000, e-mail enquiries@bdb-law.co.uk) for the applicant.



Mr Simon Hunter (Three Stone Building Chambers, London WC2A 3XL, tel 020 7242 4937, e-mail clerks@threestone.law) instructed by BPE LLP solicitors (St James House, St James’ Square, Cheltenham GL50 3PR, tel 01242 224433, e-mail bpe@bpe.co.uk) for the first respondent.



Miss Tracy Duce of Oxfordshire County Council for the second respondent.



Miss Claire Fisk of Wansbroughs Solicitors (Northgate House, Northgate, St Devizes SN10 1JX, tel 01380 733300, e-mail mail@wansbroughs.com) for the third and fourth respondents.

Cases Referenced

Legislation Referenced

  • Mental Capacity Act 2005, ss. 1, 4, 16, 18, Sch 4 para.3, Sch. 16 para.16