Unco-operative attorney ordered to pay legal costs

An attorney who refused to engage with the Court of Protection and Office of the Public Guardian has been ordered to pay her own legal costs.

As a result of her conduct (described as “aggressive and disingenuous“), the costs in the case were much higher than they would have been if the attorney had co-operated.  The normal rule in Property and Affairs cases is that all costs will be met from the estate of the incapacitated person but the Court can depart from that position in cases like this.

Facts and Judgment

CT was the subject of this case.  He had had a stroke and was diagnosed with vascular dementia.  Unfortunately, a deep rift occurred within the family with CT and his daughter on one side and his wife and son on the other side.  Following the stroke and diagnosis of dementia CT executed a Property and Affairs Lasting Power of Attorney appointing his daughter as sole attorney and a solicitor as replacement attorney and naming nobody to be given notice of the application.

An application was made to register the LPA and CT’s son objected but as he was not a named person his objection did not stop registration.

As a result of concerns raised by CT’s son and daughter-in-law, the Office of the Public Guardian asked the Court to make directions to determine whether CT had mental capacity to make decisions about his finances and property.  The concerns included CT severing the joint tenancy of the matrimonial home and another property, ceasing to pay utility bills or housekeeping money and closing the joint bank account and applying to have the matrimonial home registered in his sole name.

In addition, a Court of Protection General Visitor had seen CT in September 2013 and thought that he could revoke or suspend the LPA but he would need considerable support to do so.  Social Services had raised a safeguarding alert and the OPG had asked the daughter for an account of her dealings with her father’s money.  The daughter said that her father still had capacity and the OPG’s enquiries were an invasion of his privacy. The OPG arranged a visit from a Special Visitor to CT but the daughter would not let him visit.

The daughter said that essentially her father’s capacity had not changed since the LPA was made and asked for the application to be dismissed and her costs paid by the OPG. Perhaps this is what gave the Judge the idea!

Professor Jacoby prepared a report which concluded that at his best, bearing in mind that his mental state fluctuated because of dementia and delirium, he did not have capacity to litigate but he did have the capacity to revoke or suspend the LPA, make a new LPA, make decisions relating to his property and affairs, instruct his attorney in relation to his property and affairs and instruct his attorney to provide an account of her dealings.  However, Professor Jacoby emphasised very strongly the need for disinterested advice to help CT in making his decisions.  It is also notable that the daughter was aware that CT was better in the afternoon but seems to have chosen not to pass that on to Professor Jacoby.

The Public Guardian took the view that if the daughter had complied with the OPG’s requests and allowed a medical report to be prepared sooner they would have closed the investigation and then such costs would not have been run up.

The daughter was heavily critical of the OPG and essentially argued that she had not been dealing with CT’s affairs but rather that he had.  Specifically the Judge said, EY contended “that the OPG should have corresponded with CT from the outset but this flies in the face of reality.  EY was consistently communicating on his behalf.  For example, there was a letter to CT’s wife dated 7 September 2013, which purports to have been dictated by him and refers to an incident that had occurred the previous day.  He said :

‘I have asked EY to assist me in writing this letter to you because I remain unable to write clearly and I do want to be sure you fully understand what I wish to say to you as it is very important to both of us …

I remained in the car for a long time because at first it seems you refused to even come out to the car to speak to me, apparently the reason you gave was that you were too frightened by the presence of EY and (her partner) who were accompanying me back to the hospital.  Anyway, it seems you created quite a stir with the result that the police were called“.

The letter ended:
‘As explained above, EY is acting on my behalf whilst I am confined to hospital‘.

I should add that this intensely personal letter was copied to eleven other individuals – “Jean, Mr Duncan, Chris, Man opposite No 24, Peggy, Ruth, M & A, Sgt Flynn, Shaun (Social Worker), Minister of Church” – which seems like an amazing violation of CT’s right for his private and family life, home and correspondence.

In fact, I can find no communication that came directly from CT.  Even his letter to David Richards of the OPG, dated 11 February 2014, began:

‘Thank you for your letter dated 5th February 2014 which my daughter has read to me and discussed at length.  I am grateful that you have had the courtesy of writing to me directly with a degree of openness not previously evident in your correspondence.”

The Judge described the daughter’s assertion that she as not using the LPA because CT still had capacity as disingenuous.  Professor Jacoby had reported that CT is “subject to recurrent episodes of delirium … When he is delirious, in my opinion, he does not have any of the capacities listed below“.

The Judge made the point that the daughter should have been using the LPA when CT lacked capacity.

To further increase costs, because of the daughter’s refusal to allow a Court of Protection Special Visitor to report on CT and her insistence that an independent expert was instructed, there were costs associated with this which would not have been incurred with a free report from the Special Visitor.  The Judge did not have any real concerns about the OPG’s conduct.  The Judge said that the Court takes a dim view of anyone who obstructs a Court of Protection Special Visitor.  In fact, prior to the implementation of the Mental Capacity Act 2005 such an obstruction was a criminal offence under Section 129(1) of the Mental Health Act 1983.  The Judge took the view that the daughter and her partner refused without reasonable cause to let the Special Visitor visit CT or even speak to him over the phone.  He said that the daughter’s “insinuation that a Court of Protection Special Visitor is neither independent nor impartial is both unwarranted and offensive”.  The Judge clearly had concerns about the influence of the daughter and the concerns that Professor Jacoby had raised.  The Judge’s emphasis on this bears quoting verbatim:

“For me, the most striking feature of Professor Jacoby’s report was the repetition of a theme, which, like Ravel’s Bolero, rises in a continuous crescendo.

In response to question (2) he said: ‘Again, I consider that he would benefit from disinterested advice before making this decision“.  He deliberately highlighted the word ‘disinterested’.
In response to question (4), he said; ‘Where more complex decisions are required he would, in my opinion, benefit from disinterested advice‘.

In his reply to question (5), Professor Jacoby said, ‘I consider that at his best CT does retain the capacity to give instructions to his attorney in relation to his property and affairs, and that he would benefit from disinterested advice for more complex decisions‘.

In his conclusions, which I have set out in paragraph 23, he said : ‘…his capacities would ne enhanced by disinterested advice‘.

And in his response to question (4) again, the professor actually ventured to say that: ‘I am not making any comment here about the quality of the advice he now gets from EY because this is beyond my remit and I have no information on it anyway.  However, because he is now dependant on her for his day to day care he might be more likely to accept her advice without more careful consideration‘.

I have never before read a report on someone’s capacity that has contained so many references to the need for ‘disinterested advice’.  The only interpretation of this can be that Professor Jacoby believed that, although CT still have capacity in certain areas, he is being influenced by his daughter, and her advice is anything but disinterested.”

The daughter was ordered to pay her own costs because of her conduct as well as half of the expert fee paid to Professor Jacoby.

The Public Guardian v CT(1) and EY(2) [2014] EWCOP 51