Judge: Senior Judge Lush
Summary: Two months after her husband passed away, Mrs Harcourt appointed her younger daughter (‘donee’) to manage her property and financial affairs under a Lasting Power of Attorney (‘LPA’). Care home arrears, questionable borrowing, unaccountable financial transfers, and frequent cash withdrawals resulted in an investigation being conducted by the Office of the Public Guardian (‘OPG’).
For those unfamiliar, the functions of the Public Guardian are contained in s.58(1) of the Mental Capacity Act 2005 and include:
By virtue of Regulation 46 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (SI 2007 No. 1253), the OPG is able to require the donee to provide information and produce documents where there are circumstances suggesting that the donee may be behaving in contravention of his authority or not in the donor’s best interests or has failed to comply with a court order or directions. However, the OPG has no powers of enforcement: in order to freeze the donor’s accounts or suspend the attorney’s powers, or revoke the LPA, it must apply to the Court of Protection for an order.
With their inquiries into Mrs Harcourt’s financial affairs having been impeded by her daughter, the Public Guardian therefore had to apply to have the LPA revoked. Senior Judge Lush noted:
“39. Essentially, the Lasting Powers of Attorney scheme is based on trust and envisages minimal intervention by public authorities. Even where a donor lacks the capacity to ask the attorney to provide accounts and records, the court would not normally exercise its supervisory powers under section 23, unless it had reason to do so, possibly because of concerns raised by the OPG. The court’s powers in this respect simply duplicate those of a capable donor.”
Mrs Harcourt had chronic schizophrenia and probable vascular dementia. By the time of the hearing she was unable to explain her income, thought the care home manager was managing her money, and was unaware of her expenses. She did not know whether she had any savings or what a power of attorney was, and was unaware that she had given the power to her daughter. With the benefit of reports from a Court of Protection Visitor and a Consultant Psychiatrist, Senior Judge Lush concluded that she lacked capacity to give directions to the attorney with regard to the production of reports, accounts, records and any other information relating to the management of her property and financial affairs (paragraph 50). She also lacked the capacity to examine or instruct others to examine any financial records and raise requisitions on them (paragraph 51). Hence, the court had a discretion to intervene on her behalf.
Section 22 of the MCA enabled the court to revoke Mrs Harcourt’s LPA if she lacked capacity to do so and, inter alia, her daughter was behaving in a way that either contravened her authority or was not in her mother’s best interests. Senior Judge Lush noted that applying the statutory checklist in cases of this kind was “never particularly easy” (paragraph 53). In considering the s.4 factors, the court took into account the fact that the daughter was an auditor, whose job involves checking the accuracy of financial records: so it would be reasonable to expect a higher standard of care from her in terms of an awareness of her fiduciary duties and the need for exactitude in presenting accounts and promptness in delivering them (paragraph 59). Moreover, her mother’s finances were relatively straightforward. Senior Judge Lush continued:
“60. The factor of magnetic importance in determining what is in Mrs Harcourt’s best interests is that her property and financial affairs should be managed competently, honestly and for her benefit.”
It was clear that her daughter had not managed the finances well and her refusal to co-operate with the court and the OPG meant she was not behaving in her best interests.
After making reference to the Article 6 ECHR rights of both mother and daughter, Senior Judge Lush went on to consider their Article 8 rights:
“71. In the absence of appropriate safeguards, the revocation by the court of a Lasting Power of Attorney, which a donor executed when they had capacity and in which they chose a family member to be their attorney, would be a violation of their Article 8 rights. For this reason the Mental Capacity Act has been drafted in a labyrinthine manner to ensure that any decision by the court to revoke an LPA cannot be taken lightly.
72. In this case, I believe that the revocation of the LPA in order to facilitate the appointment of a deputy is 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.”
Accordingly, the LPA was revoked and a deputy appointed.
Comment: This decision is of particular interest for three reasons.
First, the court’s power to revoke an LPA under s.22 contains no explicit reference to best interests, unlike s.16 MCA. A literal reading might suggest that if P lacks capacity to revoke it, the court may do so if simply satisfied that, inter alia, the donee has not acted in P’s best interests. However, this judgment makes it clear that the court’s decision to revoke must in any event be in P’s best interests. In that way, s.22 is supplemented by s.4. In this regard, the judgment is entirely consistent with the earlier decision of HHJ Marshall QC in Re J (to which Senior Judge Lush did not refer), in which HHJ Marshall considered the question of what conduct of the attorney would be of relevance to the question of revocation, holding (at paragraph 13) that:
“on a proper construction of s 22(3), the Court can consider any past behaviour or apparent prospective behaviour by the attorney, [and], depending on the circumstances and apparent gravity of any offending behaviour found, it can then take whatever steps it regards as appropriate in P’s best interests (this only arises if P lacks capacity), to deal with the situation, whether by revoking the power or by taking some other course.”
Secondly, any revocation of an LPA will interfere with Article 8 ECHR. Appointment of a non-family member will presumably engage “private life;” appointment of a family member will additionally engage “family life.” And both the donor and the donee’s Article 8 rights have been expressly acknowledged.
Finally, this is another example of the Court’s increasing willingness to recognise the right to a fair trial of those involved in proceedings. Although the relevance of Article 6 is obvious (and has been emphasised in recent Strasbourg jurisprudence relating to decisions depriving individuals of capacity), in Court of Protection terms it is still somewhat uncharted territory. In this case it was referred to in the context of the donee having opportunities to respond to court directions, hearings, and the need to avoid undue delay (para 58). Its potential application in other cases remains to be seen.