Can the son carry on as attorney?

A brother and sister were appointed as attorney for their mother. The daughter spent £451,513 of her mother’s money while the son took a back seat.

MC is a lady who lives in a residential care home in Aldershot.  Her husband died in 2004.  She has two children; a son, NC who is a mechanic, and daughter, SR who is a domiciliary carer.  She had made a Lasting Power of Attorney for Property and Affairs appointing them jointly and severally.  There seems to have been an element of solicitor shopping here because one solicitor witnessed her signature to the LPA and certified her capacity yet she made her Will with a different firm of solicitors, leaving the vast majority of her estate to her daughter, and a third firm of solicitors this time in Stockport, Cheshire, were instructed in the sale of her house.

The son had begun to suspect his sister was mismanaging his mother’s affairs and entered a restriction at the Land Registry saying that no disposition of the estate was to be registered without his written consent.  There was a hearing in this case and the Judgment gives quite a lot of detail of the nitty-gritty of a Court of Protection hearing with the inevitable emotions involved.

The OPG was concerned that the daughter had spent a lot of her mother’s money on adaptations to her own property and going away on holidays.  There were unpaid care fees, a common feature in financial abuse cases.  The son had said, in response to the OPG’s correspondence, that he had not been involved in managing his mother’s financial affairs and that they had been handled solely by his sister.
The daughter had spent £451,513 of her mother’s money.  This consisted of a staggering £220,799 withdrawn in cash, cheques of £44,966, payments for holidays amounting to £8,993 and bank transfers totalling £176,755.

The mother lacked the capacity to revoke the LPA.  At the time of the hearing it sounds as if the mother’s money had pretty much run out and her property was on the market for £370,000.

The OPG had proposed that the local authority apply to act as deputy.  The son wanted to carry on as attorney and suggested that his daughters could take the role if he could not.

The first detail we are given about life in Court in this particular case is that a delegation of a dozen lawyers from the Japanese Federation of Bar Associations “sat attentively at the back of the Courtroom observing the proceedings”.

The OPG were not happy that the son had “made no serious attempt to take on his role as an attorney, other than to place a restriction on dealings with the property in Camberley”.  The OPG were also concerned that keeping the son as attorney would not work because there was a fraught relationship between brother and sister.  The son did say that he had made a serious error of judgment in allowing his sister to add her name to mother’s bank accounts and that the relationship between him and his sister had broken down in 2011/12.  However, when the bank manager told him there was not much money left in his mother’s accounts, he anticipated, correctly it seems, that his sister’s next step would be to sell the house so he entered the restriction at the Land Registry.

When Senior Judge Lush asked the son if he had any plans to take action to restore his mother’s assets, he said he did not know what to do but that he wouldn’t wish his sister and her family to be made homeless.  He did not want the police to be involved.  However, he clearly did not impress the Court when he said that his daughters would be taking their A levels in the summer and once these were out of the way he would start sorting out his mother’s affairs.  Senior Judge Lush did say that he was disappointed by the apparent lack of urgency.

The daughter did not want the son to continue as attorney originally, preferring the local authority, but when she found out that they would charge for their services, she changed her mind as she had thought they would be acting gratuitously.  Given that the local authority were prepared to accept fixed costs, £700 for the first year and £585 thereafter, and looking at the amount of work that was likely to be involved in straightening things out, readers could be forgiven for thinking that the local authority pretty much would be acting gratuitously!

The daughter opposed her brother’s appointment as sole attorney, because they tend to squabble and she believes that he is more interested in his mother’s money than in her well-being.  She said he rarely visits their mother.  The son denied this and thereafter they bickered at one another.  The daughter took particular exception to her sister-in-law’s presence at the hearing.  She said it was none of her business.

The Judge said that “Unquestionably, SR has behaved in a way that has contravened her authority and is not in MC’s best interests.  But what of NC’s behaviour?  He openly admits that he made an error of judgment in allowing his sister to manage their mother’s accounts, but he never expected her to behave in the way she did”.

The Judge made comparisons to a similar case, re; ID, but he felt this case was different.  In ID, the attorneys were appointed to act jointly and Senior Judge Lush did not believe that the passive attorney had no involvement in his mother’s financial affairs because he had opened an account in his sole name which was receiving her pension and rental income.

The Judge’s decision was as follows and the son remained as attorney:

“I am not convinced that the relationship between SR and NC would, in fact, impede the proper administration of MC’s estate. Although they bickered occasionally during the hearing, they hugged each other at the end of the proceedings, and there was no sense of the intense animosity that was evident in other cases, such as Re ED [2015] EWCOP 26 and Re EL [2015] EWCOP 30. Although I have no doubt that the authorised officer for property and affairs deputyships of Hampshire County Council is considerably more experienced than NC in managing other people’s money, and that the service provided by the Council is actually very good value for money, in my judgment, it would be in MC’s best interests to allow her LPA to remain in force with her son, NC, acting as the sole attorney.  The factor of magnetic importance is that, as far as it possibly can, the court should respect MC’s wishes as expressed in her LPA. In addition, I am not satisfied that NC has behaved or proposes to behave in a way that contravenes his authority or is not in MC’s best interests.  Accordingly, there are no grounds on which I am able to revoke his appointment“.

Case: The Public Guardian v SR & Anor [2015] EWCOP 32 (06 May 2015)