TH v JH & Ors
Summary
This was an application by the holder of an EPA for retrospective approval of gifts and payments for voluntary care. P at the time of the application was 95 and suffering from advanced dementia and living in a residential home. He was a widower and his assets consisted of his interest in his former home and a reasonable income.
The applicant was one of his sons and the application was opposed by the other son. There was a good deal of enmity involved between the two.
The payments in question had taken place over a number of years during which time for a substantial period the applicant was his father's full time carer. Unfortunately, he had kept no proper records of his dealings with his father's money nor accounts of why he was "paying" himself or his family what he did. He agreed that he should be replaced by a panel deputy.
In the result, the court gave retrospective approval for a substantial part of the payments whether as gifts or proper payment for voluntary care.
As regards the non-approved sums, the court stated that the Court of Protection has no jurisdiction to make an order for repayment (see paragraph 112). The court held that it would not be in P's best interests to order the to be appointed deputy to set about recovery proceedings (113) and directed instead that the outstanding debt be taken from the applicant's putative share of P's residuary estate and if insufficient as a debt owed to that estate.
As regards costs, despite criticisms of the applicant's defaults, there was no finding of bad faith and the resulting sum approved was much nearer the applicant's contentions than those of his brother. Thus, the court refused to depart from the usual rule that the parties' costs be paid from P's estate.
Comment
This case illustrates the problems that ensue when an attorney does not keep proper records and document decisions to make gratuitous care payments etc. As regards the jurisdiction to make an order for repayment, it is right that there is no express power and this is a deficiency that could be remedied. In Re PP [2017] EWCOP 29 (January and March 2018 Reports) however, the court, in effect, made retrospective approval conditional on repayment and bringing into hotchpot and that could, if appropriate, have been a practice followed here.
