Court finds in favour of the family and against the OPG

The Court of Protection takes the unusual step of refusing an application for the revocation of an Enduring Power of Attorney.

The application was made by the Office of the Public Guardian (OPG) in relation to DT, a man with dementia.

DT, whose financial affairs are looked after under an Enduring Power of Attorney, is resident in a care home.  He has 3 sons who act as his attorneys under an Enduring Power of Attorney.  He has a wife from whom he is separated at the advice of Social Services following a very bad phase in 2006.

The Office of the Public Guardian, who supervise attorneys, had become concerned that the attorneys had not prepared accounts and that the care home fees were in arrears. Quite often where financial abuse has taken place the care home fees being arrears will be the trigger for an investigation.  However, the Court did not feel that financial abuse was taking place here.

Here, the attorneys were in dispute with the local authority about how much of the rent of the former matrimonial home should be paid to DT’s wife, who would apparently struggle financially otherwise, and how much should be paid to DT.  The attorneys had decided that all of the rent should be paid to the wife.

When the Court of Protection sent Visitors to assess DT, he was extremely clear (and very vocal) that he wanted his sons to be his attorneys and not his wife.  DT’s capacity was affected by his dementia which was caused by vascular disease, an acquired brain injury from a fall and chronic alcoholism.  The Court’s Special Visitor felt that DT did have capacity to revoke or suspend the Enduring Power of Attorney and to make a new Lasting Power of Attorney although he did not have capacity to manage his own affairs.  Although he had the capacity to instruct his attorneys to make decisions on his behalf, in practice he probably wouldn’t because he did not think he needed to.  DT did not have any awareness of his financial situation.

The OPG’s concerns included the infrequent visiting to DT.  However, his sons explained that they were trying to provide support for their mother and actually wanted DT to move back to Essex so they could visit him more frequently.  The unpaid care fees appeared to be as a result of the matrimonial home remaining unsold although that was due to complete shortly.  Although the attorneys had not prepared accounts as they should have, Senior Judge Lush felt it was unlikely that financial abuse had taken place.

The Judge placed great emphasis upon DT’s wishes and feelings and considered that if the Court were to revoke the EPA “it would cause significant distress to him, which cannot possibly be in his best interests”.  According to case law, where a person expresses a view that is not irrational, impracticable or irresponsible, then that should carry great weight.  The Judge did not find anything irrational, impracticable or irresponsible in DT’s wish that his sons should continue to act as his attorneys and was “not satisfied that their conduct has had a sufficiently detrimental effect on DT or his finances to justify overriding his wishes”.

Another factor was identifying someone to look after DT’s affairs.  Although Suffolk County Council had originally agreed to act as Deputy, they subsequently withdrew their consent to act.  The alternative would therefore be a panel Deputy and the costs would be significantly more.  The Judge felt that the panel Deputy’s costs were likely to be disproportionate to DT’s assets.  The Judge therefore decided that the power of attorney ought to remain in place.

Lynne Bradey comments: “It is interesting to note that although DT had capacity to revoke the Enduring Power of Attorney, the Court of Protection was able to revoke it in spite of that.  That is not the case with a Lasting Power of Attorney.”
Case: DT, Re [2015] EWCOP 10 (25 February 2015)