Re MRJ (Reconsideration of an order)

Summary: This case considers Rule 89 of the Court of Protection Rules 2007 which provides that, where the court makes an order without a hearing, anyone who is affected by it may apply within 21 days for the order to be reconsidered.

The purpose of this rule and the way in which it operates was described by Her Honour Judge Hazel Marshall QC in Re S & S [2008] COPLR Con Vol 1074 in the following terms:

"[61] … Such a reconsideration is not an appeal. The processes in the Court of Protection are intended to give the court wide flexibility to reach a decision quickly, conveniently and cost effectively where it can, whilst preserving a proper opportunity for those affected by its orders to have their views taken into account in full argument if necessary. To that end, on receiving an application, the court can make a decision on the papers, or direct a full hearing, or make any order as to how the application can best be dealt with. This will often lead to a speedy decision made solely on paper which everyone is content to accept, but any party still has the right to ask for a reconsideration.

[62] If this occurs, the court should approach the matter as if making the decision afresh, not on the basis that the question is whether there is a justifiable attack on the first order. The party making the application has not had a proper opportunity to be heard, and should be allowed one without feeling that s/he suffers from the disadvantage of having been placed in the position of an appellant by an order made without full consideration of his points or his views".

This case concerned MRJ who was born in 1932 and had moderately advanced dementia. The applicants were her daughter (JT) and her grandson (KT). In 2010 MRJ had executed two LPAs – one for property and affairs and the other for health and welfare – appointing JT and KT jointly and severally to be her deputies. The LPA for health and welfare was registered in 2010 but there were technical defects in the LPA for property and financial affairs which meant that it was not registered until September 2013.

Senior Judge Lush had made two orders on the papers in September 2013.

The first order revoked the LPA for health and welfare and directed that the Public Guardian cancel its registration.

The second order:

(i) suspended the applicants from acting as MRJ's attorneys under a Lasting Power of Attorney ("LPA") for property and financial affairs until further order; and

(ii) appointed the authorised officer of Suffolk County Council as MRJ's interim deputy with instructions to investigate the applicants' management of her finances.

The applicants JT and KT applied to the court for the orders to be reconsidered.

Senior Judge Lush set out the legal framework relevant to the suspension of an LPA and the revocation of an LPA as follows:

"37. Section 23(2)(a) of the Mental Capacity Act provides that the Court of Protection may give directions with respect to decisions which the attorney under an LPA has authority to make and which the donor lacks the capacity to make. Pursuant to this provision, the court may direct the attorney to make no decisions at all and thereby suspend his or her authority to act under the LPA.

38. The combined effect of subsections (3)(b) and (4)(b) of section 22 of the Act is that the court may revoke an LPA, if it is satisfied that:

(a) the attorney (or, if more than one, any of them) has behaved, or is behaving in a way that contravenes his authority or is not in the donor's best interests; and

(b) the donor lacks the capacity to revoke the LPA.

39. The use of the word 'may' in section 22(4)(b) means that revocation is not mandatory in these circumstances and that the court exercises a discretion when deciding whether or not to revoke an LPA. This discretion is subject to the provisions of the Act and, in particular, sections 1 (the principles) and section 4 (best interests). 

40. Section 22(5) of the Act states that, if there is more than one attorney (as in this case), 'the court may under subsection (4)(b) revoke the instrument or the lasting power of attorney so far as it relates to any of them.' The effect of this is that, where attorneys have been appointed to act jointly and severally (as in this case), the court can revoke the appointment of just one of them. Thus, if I were minded to do so, I could revoke the appointment of KT but allow the LPA to remain in force with JT acting as the sole attorney. 

41. Article 8 of the European Convention on Human Rights provides that: 

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

42. Resolution 1859, which was passed by the Parliamentary Assembly of the Council of Europe on 25 January 2012, refers to protecting human rights and dignity by respecting the previously expressed wishes of patients. It states that there is 'general consensus based on Article 8 of the European Convention on Human Rights on the right to privacy that there can be no intervention affecting a person without his or her consent,' and provides that 'continuing powers of attorney should, in principle … be fully taken into account when properly validated and registered.'

43. Unless such interference is warranted under Article 8.2, the revocation by the Court of Protection an LPA, 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 8.1 right to respect for their private and family life: Re Harcourt [2013] COPLR 69. The same applies to an order under section 23(2)(a) of the Mental Capacity Act suspending the attorney's authority to act".

Senior Judge Lush accepted the evidence of the social worker for Suffolk County Council which set out that KT had been cynically and systematically misappropriating his grandmother's money. He stated that "it appeared that KT and JT exploited MRJ's lack of capacity and transferred the money from her Think Money Account largely for their own purposes" and found that "KT callously and cynically manipulated this account to his own advantage."

Given the above evidence, after satisfying himself that MRJ lacked capacity to revoke the LPA, the judge (i) confirmed his order revoking the LPA for health and welfare and (ii) confirmed the order suspending the authority of JT and KT to act under the LPA for property and financial affairs and (iii) formally revoked the LPA for property and financial affairs and appointed Suffolk County Council as substantive deputy.

The judge concluded that the revocation of the property and affairs LPA was in MRJ's best interests, was in accordance with the law and was a necessary and proportionate response for the prevention of crime and for the protection of MRJ's right to have her financial affairs managed competently, honestly and for her own benefit.

Comment: Whilst it does not set down any new legal principles, this case provides a useful summary both of the purpose/function of Rule 89 of the Court of Protection Rules 2007 and the legal framework for suspending and/or revoking an LPA. It should be noted that one outcome of a reconsideration of a suspension of an LPA may be that the immediate revocation of the LPA upon the court's fresh consideration of the issue.