Can somebody the Court removes as attorney for finance continue as attorney for health and welfare?
Yes, says the Court of Protection.
This case concerns Roy, a former radar engineer, and his two children, Philip and Sue. At the time of the hearing Roy’s wife had died. The family had experienced tragedy in that Sue’s daughter died of chicken pox at the age of 4 when she was being looked after by Roy and his wife. This caused anguish in the family and Sue’s marriage broke down soon after.
Roy had appointed his wife (now deceased), Philip and Sue as his attorneys for property and financial affairs. He had also appointed Sue as his sole attorney for health and welfare.
There were concerns about Sue’s behaviour and the ability of the siblings to work together. Sue also raised concerns about the way the carer was looking after her father.
Following the Public Guardian’s Visitor’s meeting with Sue, the Public Guardian had concerns about Sue’s behaviour and her ability to work with her brother as attorney. The Public Guardian also had concerns about Sue’s ability to work with the professionals involved in her father’s life in relation to his health and welfare too. She was described as very agitated and the subject matter of the meeting gave the Public Guardian concerns that Sue may have mental health difficulties of her own.
Sue responded by, amongst other things, asking her GP to write a letter to the effect that she had not been treated for any mental health problems, that her knuckles did not appear bitten (in response to one of the points raised by Philip in his witness statement). She enclosed evidence from the police that they had no records that she had any mental health difficulties and included pages from Psychology Today.
By the time of the hearing, everything that related to Sue from Philip was going to her solicitors and there were allegations of harassment against Philip and his wife by Sue which were denied by Philip on the basis that he and his wife had seen Sue only three times since his mother’s health took a turn for the worse, once to inform Sue that his mother’s health was worsening, once by an accident of timing and another time due to the heating failing and Philip going down to sort it out. Philip expressed his concern about Sue’s health because many of the people she came into contact with had expressed concern about her mental condition. She had also absented herself for about eight weeks after their mother died and said she would have nothing more to do with things if Philip got involved.
The Public Guardian’s position had changed by the hearing. The Public Guardian was no longer opposed to Sue continuing to work with Philip as a property and affairs attorney but thought that on the balance of probability, her appointment under the health and welfare LPA should be revoked.
Provided the Donor lacks capacity to revoke the LPA himself, and from the Visitor’s assessment of Roy he clearly did, the Court can revoke an LPA if an attorney is behaving or proposes to behave in a way that contravenes his or her authority or is not in the Donor’s best interests. The Court can also partially revoke an LPA, removing one attorney but not the other.
Senior Judge Lush pointed out that most of the descriptions of Sue’s behaviour related to the period of less than three months after a major stressor for her, the terminal illness and death of her mother. He reported that her conduct at the hearing in April 2016 was not as remarkable as her behaviour described by the Court of Protection Visitor.
The Judge did not feel that Sue had contravened her authority under either LPA. The issue was therefore whether she had behaved in a way that was not in Roy’s best interests.
It was clear to the Judge that Sue loved her father deeply and took him to a number of medical appointments. She had also made proposals for co-operation with her brother and these demonstrated “an awareness of, and a genuine eagerness to apply the supported decision-making provisions in sections 1(3) and 4(4) of the Mental Capacity Act and article 12 of the United Nations Convention on the Rights of Persons with Disabilities.
The Judge found it important that Roy and his late wife specifically chose Sue to be the sole attorney for health and welfare whereas the property and affairs LPA was joint and several. The distinction was “clearly relevant and it should be treated with respect”.
The Judge felt that he would trust Sue’s intuition when she needed to intervene and make a decision on her father’s behalf. He pointed out that the vast majority of personal welfare decisions could be taken informally under Section 5 of the Mental Capacity Act and collaboratively. Therefore, Sue’s “dereliction of duties” for eight weeks after her mother’s death made little or no difference to decision making about Roy’s health and welfare but could have had a detrimental effect on his property and financial affairs.
The Judge decided that Sue should continue as health and welfare attorney. However, on the basis of the hostility between the attorneys, which was not in Roy’s best interests, the Judge felt that the LPA for property and affairs should be partially revoked, leaving Philip as sole attorney.
Case report: RM, Re [2016] EWCOP 25 (12 May 2016)
