State of play: case summaries

Re AH

This case concerned an application by the public guardian for the court to revoke a property and financial affairs LPA.

A is a 95 year old lady who lives in Manchester. She was diagnosed with dementia in 2010 and has lived in a nursing home since the onset of her dementia. On 11 December 2010, she executed an LPA in which she appointed her niece's husband, C, to be her sole attorney and named her late brother's widow as the person to be notified when the LPA was registered.

A's certificate provider, who certified that she had capacity, was a hotel owner in the New Forest who had known A only from her visits to her niece and C.

The public guardian applied for the LPA to be revoked, together with an order for a new LPA in favour of the public guardian, and an order for the investigation of the management of
A's funds.

Counsel for the public guardian alleged that C had failed to comply with his duties as an attorney. He failed to keep accounts, mixed A's funds with his own in a joint account, and failed to explain how unaccounted funds of almost £30,000 had been removed from A's account since 2010.

There were also other incidences of financial mismanagement, including purchasing a leasehold property after the LPA was registered, using funds to enhance C's own property, and to pay utility bills relating to his own property. C had also failed to pay A's care home fees, with arrears due of almost £100,000 which had jeopardised A's place in the care home.

C had failed to give A a personal allowance to buy basic items such as clothes, so that A was left to wear clothes of care home residents who had died. Over a two and a half year period, C only paid £290 to A for her personal use.

At the hearing, C conceded that he had not kept any accounts when he should have done so, and that alone was enough to revoke the LPA. Senior Judge Lush considered that attorneys are provided with a lot of power, but in turn are subject to stringent duties. He considered that C had not acted with honesty or integrity and had had no regard to A's best interests: he had failed to treat her with any semblance of dignity, empathy or respect. The LPA was therefore revoked.

Practitioners should have in mind the responsibility and accounting requirements attorneys take on and should make them aware of this. Attorneys should be reminded of their duties to the donor and their accountability to the public guardian. 

See Re AH [2016] EWCOP 9

 

Burns v Burns

In this case, the Court of Appeal upheld a previous judgment in which it was concluded that the deceased, D, had validly made a will in July 2005, leaving her estate in equal shares between her two children (AB and CB), despite concerns about her testamentary capacity and lack of knowledge and approval.

D had made a previous will in 2003, which left AB a larger share of the estate. AB had challenged the 2005 will on basis that his mother did not have capacity to make a will, or know or understand the content or effect of the 2005 will. In 2003, AB had approached social services regarding D’s care as he was concerned about D’s ability to care for herself. Various assessments of her mental state were carried out, which concluded that D had various problems, including with her memory. 

In the first instance, the judge concluded that D had the requisite capacity to make the 2005 will. Though useful, the social care assessments were aimed at the provision of care services and the ability of D to live independently. The judge placed more weight on the fact that she could still form opinions as to fundamental elements of her life, such as whether to move to a residential care home, and concluded that D could, despite her care requirements, give adequate instructions. 

When D signed the 2005 will,the absence of a detailed solicitor’s note, confirming D understood the terms and effect of the 2005 will, did not in itself prevent it from being valid. 

The judge noted that while it was preferable that the solicitor would have taken a more detailed approach in the meeting to sign the 2005 will, reliance could be placed on the instructed solicitor’s experience to have picked up on issues relating to D’s inability to make a will, if there were any. 

The Court of Appeal upheld the earlier judgement on the basis that the judge adequately considered the requirements for capacity as well as the ‘golden rule’. This requires solicitors to examine the background of the case and where there are any departures from previous wills, ask the testator non-leading questions about their decisions, and involve a medical practitioner where appropriate. 

The Court of Appeal highlighted that while the golden rule is good practice, it is ‘a guide for solicitors, not a rule of law’. The fact the golden rule was not followed completely did not itself defeat the validity of the 2005 will. 

In terms of capacity, the Court of Appeal considered the judge was correct to reach a conclusion that D did not lack capacity. The facts presented were enough to discharge the burden of proof, and the subsequent changes that were made to the 2005 will were rational and straightforward. 

In any event, the rule in Parker v Feldgate [1883] is applicable and therefore the 2005 will would not be invalid, even if D did not have capacity at the time of signing because she did have capacity when she gave the original instructions in 2004.

This is a useful reminder to practitioners that following the golden rule is not determinative of validity, or a substitute for established tests of capacity or knowledge and approval. 

While all practitioners should undoubtedly follow the golden rule where there is any doubt as to capacity, it is important to remember that failing to follow the rule is not fatal to a will, nor does following it prevent a will from being challenged where there is a genuine lack of capacity. 

See Burns v Burns [2016] EWCA CIV 37

 

Re Z and others

Z is 20 year-old lady described as a typical young woman of her age: she is passionate about music, singing, celebrity status and social media.  She was diagnosed on the autistic spectrum with Asperger’s syndrome and with a borderline learning disability. 

She lived with her mother, X, with some support from the local authority (WBC) and a care agency.

The concerns about Z centred on a few issues. Namely, whether she could live independently and whether she understood the risks involved in activities, such as sexual relationships and her activity on social media. Z had appeared in a televised talent show which was described by all concerned as humiliating.

WBC issued proceedings in the Court of Protection in June 2014, seeking declarations as to Z’s capacity to choose her residence, make contact with others, deal with her care and litigate in these proceedings. The official solicitor acting on behalf of Z and her mother opposed the local authority.

The central issue was whether the risks taken by Z, represented ‘unwise’ decision making under the Mental Capacity Act 2005 (MCA) or evidenced her lack of capacity. The judge began by saying that risk-taking is an ‘inherent, inevitable, and perhaps necessary part of adolescence and early adulthood experience’.  

The judge reviewed the case law and set out the provisions of section 1 Mental Capacity Act 2005 (MCA), including the presumption of capacity, and the time and matter-specific nature of decision making. This case centred on what amounted to an unwise decision under section 1(3) MCA, and the ability to use and weigh the options in order to make a decision.  

Dr R assessed Z in June 2014, reporting that she had some insight into the risks involved (there would be no further talent shows) but seemed less sure of the social media risks and of meeting potential partners. Dr R also considered that Z may not appreciate the demands of living independently. He concluded that she was unable to identify risks of certain situations and she over-estimated her ability to keep herself safe.   

The judge indicated Dr R’s reports could be read in two ways. Showing a lack of capacity but also merely showing naivety, immaturity, diffidence or embarrassment. The judge placed great emphasis on hearing from Z herself.

In the year between the two hearings, Z formed a relationship with A, through social media.  The relationship was not a success but she had recognised this and removed herself from a dangerous situation. It was agreed that Z had some insight into why the relationship had failed.  

The judge summarised the evidence and the law, admitting this was a difficult decision, but concluded that the local authority had not discharged its burden of proof to show Z lacked capacity.  

The judge accepted that Z had learned from past experience and concluded that ‘healthy risk-taking helps young people to learn … but some risk-taking can be unhealthy and dangerous’. He mentioned casual sex or drug or alcohol consumption which were ‘inherently unwise and unsafe’.  

For an assessment under the MCA, it was necessary to separate what was unhealthy and dangerous risk-taking, and what showed a lack of capacity. The judge said it was tempting for the court to take a ‘paternalistic or perhaps overly risk-averse’ approach to Z, but this would be ‘unprincipled and wrong’.  He was satisfied that Z had a reasonably fulfilling life which she enjoyed, and that she should be encouraged to grow further in maturity and confidence. 

See Re Z and others [2016] EWCOP 4

 

Re KJP

This was a decision made by Senior Judge Lush in response to an application for permission to appeal a decision relating to the revocation of an enduring power of attorney (EPA).

K was aged 87 at the time of the hearing.  His first wife, M, had died and they had two children; J and N.

In 2007, K signed an EPA appointing J and N jointly and severally to be his attorneys, with general authority to act on his behalf, in relation to all of his property and financial affairs.

K then met and later married JE in March 2010. JE had a son, F, from a previous marriage.  In January 2010, K had given F £100,000, supposedly to buy F’s share of JE’s former matrimonial home, although this was never completed.  

On 31 December 2012, K mentioned to J and N that he had paid F a further £5,000, but did not seem sure why he had done so.  J and N looked into K’s finances and thought money had been spent inappropriately on a new alarm system. K and JE, together with K’s children agreed that the bank would notify J and N of any expenditure over £1,000 on K’s account.

In May 2013, as attorneys, J and N applied to the Office of the Public Guardian to register K’s EPA, having given notice to K and JE as required.  There were no objections and the EPA was registered on 18 June 2013.

In August 2013, J and N decided to restrict K’s access to his income to a carer’s allowance of £212 a month, and to limit access to his capital to an account held in K and JE’s joint names, on which there was a balance of approximately £6,000.

The relationship between K and his children deteriorated and in March 2014, K executed a deed revoking the EPA. His signature was witnessed by Dr V from the local hospital.  

K applied to the Court of Protection to confirm the revocation of the EPA and stated his reasons, including that he had been denied access to his own money.  His case was supported by a detailed assessment by a Dr V, which confirmed that K was able to understand who the attorneys were, what authority they had, and why it was expedient to revoke the power. 

Dr V stated that K comprehended the information relevant to the decision, retained that information, weighed and balanced the information to arrive at a choice, and communicated that decision. J and N objected to the application. District Judge Mort made a series of orders, culminating in an order confirming that the EPA should be revoked, and that K had the capacity to do so.  

At the hearing on 14 January 2016, Senior Judge Lush considered the arguments from J and N, particularly their challenge to Dr V’s evidence. The judge reviewed the Permission to Appeal law, contained in rule 173 Court of Protection Rules 2007, which indicated that permission to appeal should only be granted where there is a real prospect of success, or some other compelling reason. 

Furthermore, rule 179 states that an appeal would be allowed if the decision of the first instance judge was wrong or unjust, because of a serious procedural or other irregularity in the proceedings.

Senior Judge Lush refused permission to appeal, considering there was no real prospect of success and no other compelling reason. The judge was critical of J and N for seeking to prolong the proceedings. The judge praised the clarity of Dr V’s assessment which was both time and decision-specific.  The judge declined to make an order for costs. 

See KJP, Re [2016] EWCOP 6