Bungalows, sausage rolls and a fracas in a care home

An attorney who “didn’t have a clue” about her duties was removed as attorney but re-appointed as deputy in an inventive solution from the OPG, being blessed by Senior Judge Lush.

This case related to AMH, a widow who lived in Greenwich and retired to Herne Bay. The case involved a very challenging family situation and problems with a Lasting Power of Attorney for Property and Financial Affairs.

Audrey, AMH’s daughter, along with Rocky, her grandson (age 27 and the son of AMH’s deceased son, Robbie), were appointed as attorneys for property and financial affairs jointly and severally.  Another son (Kevin), his wife (Ann) and their daughters (Tanya and Sabrina) were appointed as health and welfare attorneys.  Rocky has a sister called Xatasha.

Rocky stood to inherit AMH’s estate.  He had lived with AMH and her husband for a number of years but now lived with friends.  Rocky was described as “the apple of AMH’s eye”.

Rocky had already been removed as attorney because it was not felt that he had the capacity to carry out the duties of an attorney.  The OPG became concerned about the operation of the financial LPA.  There had also been a dispute between the health and welfare attorneys and Audrey, the financial attorney.

The Public Guardian was becoming “increasingly suspicious” about Audrey’s unwillingness to provide financial information.  The manager of the care home was also concerned that Audrey was spending AMH’s money on items such as additional food which AMH was not eating and which was a waste of money.

The family background seems to have been very difficult.  The manager of AMH’s previous care home told Barbara Joyce that “the family were a nightmare. Their behaviour was having a significant impact on the service and she was considering giving the donor notice and terminating her placement. They constantly row, will not accept the judgments of staff, and have got into physical confrontation with one another. There was an incident in which Tanya threw a mug of tea over Audrey and Rocky. Audrey then pushed Tanya, who pushed her back. Audrey fell to the ground and Tanya kicked her in the shins and on the back of her head. Audrey reported the incident to the police”.

Audrey’s argument was as follows:

“My mum trusted only myself and Rocky with the property and finance side of things in what she wanted done and to be. Her and dad’s life-long live-in grandson since 2 yrs old, now 27 yrs, who they were both legal guardians to, who is named in both their wills as benefactor of [the bungalow in Herne Bay] when they both die, as mum and dad considered Rocky their son and it was his home with them.

Mum knew the person I was and believed and trusted in me. She made me promise, before she lost her mind, that I would protect, keep safe, keep well, look after, watch over, her beloved Rocky and her 4 shih-tzus (dogs) she called her babies and do the same as regards her property and finance.

My mum said to me, “Audrey, you are the only one I can really trust that I know will do what I want, won’t let me down, and you’ll keep your word – I want you to promise.” I said, “Yes, mum, I promise you that I’ll do all you ask.” I have all the time sought to keep to all I promised my mum.

I have come up against negativity from all areas. All I know is I must keep to my promises mum set to me. I’m driven by those promises to mum. I won’t fail her.

I miss her so much. We were never apart. My mum’s mum called me and mum “her and her shadow”. My mum called me her clone. We were alike in every way; identical. So much so people say, “as long as you live, if your mum dies, she will always be alive because you’re too much alike: looks, character, ways, morals, everything.” Dad also said I was too much like mum.

I ask you to allow me to continue to be my mum’s LPA that she made me in order that I can and will continue to act as she requested of me in the way that she wanted, in her best interest.

My mum would be so mad that her and dad’s life-long live-in grandson (Rocky) since age 2 yrs, now 27 yrs, who they were also legal guardians to, OPG took away his LPA in 2013 simply because he had literacy problems and is dyslexic.

Mum made myself and Rocky LPA in that he would take care of all the labouring side and I would take care of all literacy etc. side of things because of this. My mum’s decision choice of LPA was changed because OPG deemed Rocky not suitable and OPG took Rocky’s LPA away, disrespecting mum’s choice, her decision what she wanted. My mum at time of making LPA believed what she wanted would be, that she was securing what she wanted, and nothing and no one could change it.

The OPG and others believe what they think is best should be. This is wrong. It’s my mum’s choice. It’s all about what my mum chose – what she wanted and trusted the C.O.P. to enforce for her. My mum had a right to choose for that choice she made to stay, be honoured, be respected, no matter what. My mum wanted her family to control all aspects of her life – health, welfare, property, finance – not strangers, departments or courts. It’s why she made LPAs.

My mum’s wishes must be respected. She had the right to choose and it be upheld. She shouldn’t be considered a mindless object for people and departments to overrule her choices and decisions simply because she can’t object herself now. This would be taking advantage of my mother and her previously expressed desires, wishes, choices.”

Kevin volunteered to be deputy for finance.

The Public Guardian was concerned that AMH was paying utilities and maintenance on the bungalow and felt that although the bungalow needed to be maintained, the amounts being used by Audrey for this were “considerably high”. The Public Guardian also said “The Public Guardian is concerned that Audrey is not utilising AMH’s assets in her best interests. For example, she is not saving AMH’s surplus income in the event of her Continuous Health Care funding ceasing. That being said, the evidence shows that Audrey’s actions are more a consequence of her ignorance and belief that her current spending is benefitting AMH rather than her own self dealing. It is the Public Guardian’s opinion that Audrey would benefit from guidance in her role and therefore requests the court to revoke the LPA and appoint Audrey as deputy to manage AMH’s property and financial affairs with support from the OPG.”

Audrey took exception to this on two fronts:

“Audrey took exception to her behaviour being described by Sonya Hanson as ‘ignorance’, and I had to reassure her that, in the context in which the word had been used, it simply meant that she was unaware of her role and responsibilities as an attorney.

Audrey objected to the Public Guardian’s suggestion that the LPA be revoked and that she should be appointed as her mother’s deputy. She clearly resents any form of oversight, but was eventually persuaded by her aunt that the Public Guardian’s proposal was perfectly reasonable in the circumstances and that the OPG was, in fact, trying to work with her, rather than against her”.

The dog lovers among you will want to be updated on the shih-tzus but the news is not good unfortunately; Audrey said that she had placed her mother’s shih-tzus in a boarding kennels which is run as a charity, to which she makes a regular donation from AMH’s funds. Sadly, three of the four dogs have died.

For good measure, Audrey said that she intended to apply to the Court to have the health and welfare LPA revoked.

Senior Judge Lush did not feel that Audrey had a grip on her duties as attorney.  He commented:

“Audrey has some strange ideas about the functions and duties of an attorney acting under an LPA. A good example is her suggestion that her former co-attorney, Rocky, “would take care of all the labouring side and I would take care of all literacy etc. side of things.”

At the hearing I asked Audrey a few basic questions about the principles of the Mental Capacity Act 2005, best interests decision-making, and the fiduciary duties of an attorney acting under an LPA for property and financial affairs. The replies to these questions required no more knowledge than the information that is already contained in Part C of the LPA, which Audrey signed on 23 January 2013. She didn’t have a clue, and I am inclined to agree with the Public Guardian that her actions are “more a consequence of her ignorance … rather than her own self-dealing.”

What concerns me, however, is that Audrey has no intention or desire to learn about the principles of the Mental Capacity Act, or best interests decision-making, or her fiduciary duties as an attorney. One of her personality traits is inflexibility, or rigidity in thought and behaviour. She is adamant that she knows what is best and nothing and nobody will persuade her otherwise.

Take the bungalow, for instance. Audrey says that AMH wants Rocky to inherit the bungalow, so that he will always have a roof over his head. In fact, AMH didn’t specifically devise the bungalow to Rocky. She left him her entire residuary estate, which naturally includes the bungalow or its net proceeds of sale. Rocky doesn’t live in the bungalow and has no wish to live there. He is perfectly happy staying with friends. Yet, as a result of Audrey’s rigidity of thought, the bungalow has become a millstone around their necks. It is unoccupied and generating no income. It is a drain on AMH’s resources. AMH is paying the entire outgoings, even though she is beneficially entitled to only a half share of the net proceeds of sale. Rocky is unable to contribute towards its upkeep because he is in receipt of means-tested benefits. The bungalow should be sold or let or, at the very least, Audrey should be taking professional advice on how to achieve the best outcome for both AMH and Rocky and, in the event of a conflict of interests between them, the best result for AMH.

Another example is the purchase of additional foodstuffs. Audrey supplies her mother with things she liked to eat in the past, and often turns up with “24 mini sausage rolls, 6 pork pies, and numerous cakes and biscuits; too many for one person comfortably to eat.” AMH has no appetite for these items, partly because her tastes have changed, but mainly because she receives an adequate, nutritious and balanced diet at the nursing home. Yet, Audrey is spending over £250 a month of her mother’s money on unnecessary food, sweets and cakes, which AMH sometimes throws at members of staff and ultimately end up in the waste bin.

You wondered where the sausage rolls were coming in didn’t you?

The Judge’s final comment about Audrey’s conduct was “the statement in Audrey’s acknowledgment of service was ‘a clarion call to the court to respect her mother’s rights, will and preferences’. On reflection, it is really a demand that the court should respect Audrey’s right to do as she pleases”.

Because the Public Guardian supervises deputies, Senior Judge Lush revoked the LPA but appointed Audrey as deputy instead.  The hope is of course that Audrey can, with help from the OPG, fulfil her duties as deputy.  If that does not happen I suspect we will not have seen the last of this case.

November 2015

Re AMH [2015] EWCOP 70 (30 October 2015)