The “callous and calculating” Attorney who paid himself £117,000 is removed by the Court of Protection

The only son of an elderly lady, who charged her £400 a day for visiting her and acting as her attorney and said that a panel deputy would be a waste of time because his mother’s money was coming to him anyway, has been removed by the Court of Protection.

Martin is the only child of Sheila, a widow, who originally lived in Lancashire but moved to Wales when her late husband retired.  Martin was a project manager for a major accountancy firm but then became an independent consultant and has since retired.  Sheila appointed him as her sole attorney under an Enduring Power of Attorney.

Sadly, and predictably in this case, the usual hallmarks of financial abuse caused the Office of the Public Guardian to investigate.  Readers will be familiar with these hallmarks, the non-payment of care fees, the non-payment of a personal allowance and rare visits by the attorney.  (You do have to wonder quite how the attorney managed to rack up quite so much in “expenses” when he rarely visited his mother).

As happens in a lot of these cases, the attorney was using a dispute over whether the care fees should be funded by the NHS or not as a reason for not paying them. By the time the Court of Protection Visitor met Sheila in December 2014 she “showed no evidence of being able to understand anything at all”.

Not surprisingly, Senior Judge Lush emphasised the correct way to approach care fees disputes which he has set out in previous cases.  That is that the attorney should keep paying the fees whilst pursuing an appeal and if the appeal is successful then those fees will be reimbursed.

As well as paying himself £49,143.19 since August 2009, Martin pocketed the £68,146.26 proceeds of a successful NHS Continuing Care claim “in part payment for the costs he had incurred”.  That gave a staggering total of £117,289.45.

Martin contended that because his mother had been ill-treated in a previous residential home in Llandrindod Wells, he needed to visit her to check for signs of physical abuse.  That seemed to run counter to the evidence from the home which was that Martin rarely visited.  Senior Judge Lush also pointed out that as Martin was a Property and Financial Affairs attorney, which is the only type of attorney you can be under an EPA, these visits, even if they were necessary, were not part of his role as attorney and he could not therefore claim expenses for these.

Martin seemed to believe there was something of a conspiracy going on between the County Council, the local health board and the OPG in relation to his mother’s care fees.  That was not exactly borne out by the fact that the local health board had already paid back these for the time when Sheila should have been receiving NHS Continuing Care.

Martin went on to say that “we get charged a lot for toiletries whereas we were not charged at all at [her previous residential care home in Llandrindod Wells]. I also don’t think she needs colour tinting. I know these are small points. I paid the charges in 2014 and I was going to pay them this year.”

Martin’s explanation for the amount he had paid himself was “in my view these are not excessive, considering I have been fighting this battle with Powys LHB since 2004. If I had not spent the large amounts of time on this case, then my mother’s estate would still be illegally paying the full costs of care, and the 2013 compensation would never have been forthcoming. Finally, I have not taken any gifts from the estate (which could have been in the region of £33,000 from 2004 to 2015)”.

At the hearing Martin confirmed that his daily rate of £400 which he had charged to his mother for visiting her and for working on the claim against the local health board, was his usual daily rate when he was a self employed independent consultant.

Martin’s comments on the proceedings as a whole and the need for a panel deputy were somewhat staggering.  Martin said:

“I see no need to replace myself. I am the sole heir and because of my mother’s dementia and current poor health, there is no need to protect the estate’s financial interests, which are effectively mine.

The OPG have now recommended that [a deputy] is appointed from their own panel. I would expect any appointed deputy from the OPG to seek to assist the Police in bringing criminal charges against Powys LHB, and to recover the monies owed from Powys LHB. If this is not part of the remit then appointing will be a waste of time and any costs incurred will be to the detriment of my mother’s estate and my own financial interest in my mother’s estate. However, it is apparent that the OPG do not want to pursue the recovery of monies owed from the Powys LHB. The OPG appears to be acting on behalf of Powys CC and Powys LHB, and as such is effectively colluding in their fraudulent behaviour. Consequently I believe that the OPG is not a fit or proper organisation to protect the interest of my mother’s estate.

On the face of it, the OPG’s desire for me to repay money from my mother’s estate makes little sense. I am the sole beneficiary of the estate and any restitution I made would come straight back to me on my mother’s death, which considering her present state of health, is likely to be sooner rather than later. “

Not surprisingly, Senior Judge Lush took a dim view of Martin’s conduct and revoked the EPA.  As well as dealing with the appropriate way to handle the care fees dispute which we have seen above, Senior Judge Lush said,

“One would be hard pressed to find a more callous and calculating attorney, who has so flagrantly abused his position of trust.

Martin hasn’t paid his mother a personal allowance since June 2014 because toiletries were free in her previous residential care home and he resents having to pay for them now in the nursing home in which she has been living since February 2013. He even begrudges her having her hair tinted.

The assertion that he hasn’t taken “any gifts from the estate” adds nothing to his credibility. If anything, it highlights his lack of it. He was referring to the £3,000 annual exemption for inheritance tax (‘IHT’) purposes, but Sheila’s estate is well below the threshold at which IHT becomes chargeable and no one is entitled, as of right, to receive a gift of £3,000 each year.

As for Martin’s charging of expenses, Senior Judge Lush pointed out quite correctly that Sheila did not expressly provide for Martin to be remunerated and that if he did intend to charge her he ought to have applied to the Court for authorisation pursuant to paragraph 16(2)(b)(iii) of Schedule 4 to the Mental Capacity Act 2005. By not doing so, he behaved in a way that contravened his authority and was not in the donor’s best interests.

Senior Judge Lush said,

“The Public Guardian believes the amount of £117,289.45 is an excessive amount to claim for out of pocket expenses. I would put it more strongly than that. I believe that charging one’s elderly mother a daily rate of £400 for visiting and acting as her attorney is repugnant.

Martin suggested that the appointment of a panel deputy would be a waste of time and money because his mother’s estate is effectively already his. I disagree. The panel deputy will, for the first time in eleven years, place Sheila at the centre of the decision-making process, rather than view the preservation and enhancement of Martin’s inheritance as the paramount consideration”.

Comments

In this, another sad case where another family member attorney has not so much let the donor down as pillaged their estate, we see a combination of the usual hallmarks of financial abuse coupled with a staggering disregard for the fact that the donor was still alive.  The son seemed to find it almost inconvenient that “his” inheritance was not yet his to do as he wished with.  Objecting to his mother having her hair tinted because of the extra cost sums up his attitude perfectly.

November 2015

SF, Re [2015] EWCOP 68 (26 October 2015)  http://www.bailii.org/ew/cases/EWCOP/2015/68.html