Mental Capacity Case

The Public Guardian v Marvin

Senior Judge Lush

In The Public Guardian v Marvin [2014] EWCOP 47, P had appointed his son as attorney for finance and affairs and health and welfare.

The Public Guardian became concerned because the attorney had delegated his finance and affairs role to P's partner and P's home was no longer registered in P's name, and brought an application for revocation of both powers of attorney.

As regards P's property and affairs, the attorney, Marvin, accepted that he had acted beyond his authority pleading ignorance of the rules and guidance. He was remorseful and agreed that his attorneyship for finance and affairs should end but asked that he be appointed joint deputy with a panel deputy.

Senior Judge noted that there had been no misappropriation of P's funds, no suggestion that the attorney had abused P in any way, and no suggestion that he was taking advantage of his father by undue influence.

Senior Judge Lush agreed to the unusual joint appointment, accepting that that was in P's best interests and that with the added supervision that a deputyship entails and ready access to advice from the panel deputy, there would be no concerns in relation to P's finances.

In making this joint appointment, Senior Judge Lush noted that:

"44. An order appointing Marvin to act jointly with a professional deputy is also, as far as is reasonably possible, compatible with:

(a)   section 1(6) of the Mental Capacity Act 2005, which states that "before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action";

(b)   the Parliamentary Assembly of the Council of Europe's resolution 1859, made on 25 January 2012, on protecting human rights and dignity by respecting the previously expressed wishes of patients; and

(c)    Article 12.4 of the United Nations Convention on the Rights of Persons with Disabilities, which requires that 'measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, [and] are proportional and tailored to the person's circumstances.'

Senior Judge Lush was, though, at pains to stress that the decision was unusual and fact-specific, and that it should not be regarded as setting a precedent for other cases in which the court finds itself having to revoke the appointment of an attorney under an LPA.

Senior Judge Lush also accepted that the attorneyship for health and welfare should continue, again taking into account that the attorney's failings had been through ignorance, there had been no abuse of position and that advice was available to him.

We note, finally, that although there was some excitable press coverage about the fact that P was at one stage dressed by P's wife (i.e. the attorney's mother) in a onesie with a padlock to prevent him shredding his incontinence pads and ingesting the contents, this was a matter that Senior Judge Lush found could not serve as a basis to criticise the attorney because it was done on medical advice and at a time when a similar situation had been held by the Court of Appeal in Cheshire West not to amount to a deprivation of liberty.