Re DP (Revocation of Lasting Power of Attorney) CoP Case No: 12351387 (Senior Judge Lush)
This is the first ‘Munby-compliant’ case for which permission to report has been given in accordance with the provisions of the Guidance issued by the President on 16 January 2014. It is a decision upon an application by the Public Guardian to revoke and direct the cancellation of the registration of a Lasting Power of Attorney (‘LPA’), a class of decision in respect of which permission to report must be given absent compelling reasons to the contrary.
DP, the subject matter of the proceedings, had known JM, since 2006. He was her former gardener. In August 2011, she executed her last will and testament in which she (1) appointed JM and her accountant to be her executors; (2) gave 10% of the net proceeds of sale of her house in Orpington to Brookwood Cemetery (where her husband was buried after his death in 1997) and another 10% to the Russian Orthodox Church; and gave the remaining 80% of the net proceeds of sale of the house and her entire residuary estate to JM. In October 2011, she executed a property and affairs LPA in which she (1) appointed JM to be the sole attorney; (2) did not appoint a replacement attorney; (3) did not impose any restrictions or conditions on the attorney’s authority; (4) did not set out any guidance for him to follow; (5) did not agree to pay him for his services as attorney; and (6) named nobody who was to be notified when an application was made to register the LPA. The LPA was registered in February 2012, and DP moved to a residential care home in April 2012.
An investigation was started by the OPG in March 2013 after a tip-off was received from Aviva regarding JM’s conduct in relation to attempts to encash an investment bond owned by DP and to transfer the proceeds into his own name. It is clear from the judgment, however, that DP had been on the OPG’s radar for some considerable period by then, a social worker from the relevant NHS Foundation Trust having contacted the OPG in January 2012 to express her concerns about JM’s conduct after DP had been admitted to hospital which had given rise to a safeguarding alert. The OPG had not considered he was in a position to intervene because the concerns related to DP’s personal welfare, and the LPA was a property and financial affairs one. It appears that the police decided that there was insufficient evidence to pursue an investigation at that stage.
The OPG’s investigation revealed a number of significant irregularities in JM’s conduct, including the making of a gift to himself of approximately £38,000 in November 2012, roughly the amount of compensation that had been awarded to DP by the Financial Ombudsman Service as a result of a complaint brought on her behalf by DP. He also paid himself a salary for ‘house clearance and rubbish removal’ and gardening services, and leased a car under the Motability scheme for his wife.
The OPG applied for the LPA to be revoked in April 2013, and the matter ultimately came on for hearing in January 2014.
Senior Judge Lush had little hesitation in concluding that it was in DP’s best interests for the LPA to be revoked. As he noted, it was unusual to have referrals made to the OPG from two entirely separate sources. He also held (at paragraph 39) that by making a gift of £38,000 to himself, JM contravened the provisions of s.12 MCA 2005; in order to have made a gift of this magnitude, he should have applied to the Court of Protection for formal authorisation pursuant to s. 23(4) of the Act. As regards the payment of the ‘salary,’ Senior Judge Lush noted (at paragraph 40) that:
“Regardless [of] the inherent artificiality of his claim for remuneration at a rate of £20 a day for 365 days’ house clearance and rubbish removal and £20 a week for 52 weeks’ gardening, JM contravened his authority by awarding himself a salary. Section 7 of the LPA, ‘About paying your attorneys’, was left blank by DP. The guidance to that section states: ‘You can choose to pay non-professional attorneys for their services, but if you do not record any agreement here, they will only be able to recover reasonable out-of-pocket expenses.’ JM had no authority to charge for his services under the LPA itself and, if he wished to receive a salary, he should have applied to the Court of Protection for directions under section 23(3)(c) of the Act, whereby the court can authorise an attorney’s remuneration or expenses.”
Senior Judge Lush further found that JM was in breach of his fiduciary duties as an attorney by failing to keep proper accounts and financial records, and was unimpressed with the various reasons advanced by JM why revocation of the LPA would leave him in a position where he could no longer maintain a Motability vehicle and visit DP. After all, Senior Judge Lush noted rather tartly at paragraph 42, he was surprised that “having received a substantial gift of £38,000 from DP’s estate as recently as November 2012, JM should have insufficient resources to keep up the payments on the vehicle.”
In response to JM’s submission that the police had concluded that ‘there was no case to answer,’ Senior Judge Lush helpfully spelt out the difference between an investigation by the police and one conducted by the OPG thus:
“44. There are significant differences between a police investigation and an investigation conducted by the OPG. When the police investigate an alleged crime, they need to consider whether there is sufficient evidence to present to the Crown Prosecution Service (‘CPS’) to guarantee a realistic prospect of conviction, which in this case would have been on a charge of theft or fraud by abuse of position. The CPS would have had to prove that JM was aware that he was acting dishonestly and they would have had to prove this ‘beyond reasonable doubt’, the standard of proof in criminal proceedings. The decision not to prosecute him simply means that the CPS was not totally confident that it would be able to prove JM’s guilt so as to ensure a conviction. It does not imply that his behaviour has been impeccable.
45. By contrast, an investigation by the OPG is concerned primarily with establishing whether an attorney or deputy has contravened his authority under the Mental Capacity Act 2005, or has acted in breach of his fiduciary duties under the common law of agency, or has behaved in a way that is not in the best interests of the person who lacks capacity. The standard of proof, ‘on the balance of probabilities’, is lower than the criminal standard.
46. Like the police and the CPS, the OPG carries out a comprehensive sifting process, and the Public Guardian will only make an application to the Court of Protection in cases where he has good reason to believe that an attorney or deputy has acted inappropriately and that it is in the best interests of the person who lacks capacity for the attorney or deputy to be discharged.
47. In fact, the OPG make comparatively few applications to the court. According to the Office of the Public Guardian Annual Report and Accounts 2012-2013, at pages 6 and 7, the Public Guardian received a total of 2,982 safeguarding referrals during the financial year 2012/13. 728 (24%) were referred for full investigation and the Public Guardian approved 480 investigation case recommendations. Of these, only 136 resulted in an application to the Court of Protection for the removal of an attorney or deputy.”
Senior Judge Lush therefore revoked the LPA and appointed a panel Deputy.
As a further point, Senior Judge Lush noted the fact that the sale of JM’s house in February 2013 meant that the subject matter of the gifts to Brookwood Cemetery and the Russian Orthodox Church no longer formed part of DP’s estate, so the gifts failed or, to use the technical legal term, they ‘adeemed’. This ademption was, Senior Judge Lush found, unavoidable given that Aviva had frozen the encashment of JM’s investment bond and it was appropriate for JM to sell DP’s house to make funds available to pay her care home fees. Senior Judge found that there was no intentional interference on JM’s part with the succession rights under DP’s will, even though he was aware of the contents of the will and stood to gain substantially from the ademption as the residuary beneficiary. Senior Judge Lush noted the complexity of the law in the area, and highlighted the leading – conflicting – cases in the area from common law jurisdictions. He found, however, that there was no need to consider them because the problem they addressed could easily be averted during DP’s lifetime by the execution of a statutory will on her behalf. He therefore anticipated that one of the first tasks to be undertaken by the panel deputy after their appointment as DP’s deputy would be to apply to the court for an order authorising them to execute a statutory will, which will give effect to her wish that Brookwood Cemetery and the Russian Orthodox Church should receive some kind of financial benefit on her death.
Aside from the historical significance of the judgment as being the first to be published under the new regime, this judgment is also of no little instrinsic interest, above all for its spelling out of the distinction between police investigations and those carried out by the OPG and the obiter comments upon the problems of the law relating to ademption.
At a very practical level, however, it is perhaps of some concern that steps were not taken in January 2012 to investigate the conduct of JM by reference to the standards to which he was held under the MCA 2005 (whether or not they amounted to criminal conduct which would have justified proceedings being brought by the CPS). It is perhaps too easy in retrospect to identify missed opportunities, but it is perhaps not entirely unfair to say that it is troubling that conduct which, on its face, was cause for considerable concern as to whether JM had DP’s best interests at heart did not come before the Court of Protection until well over a year later, by which time JM had already enriched himself substantially at DP’s expense. That that conduct related to JM’s decisions in relation to DP’s welfare as opposed to her property and affairs is, not, perhaps, a distinction that DP would appreciate were she in a position to do so.