Feature

posted 1 Sep 1997 in Volume 2 Issue 6

Court of Protection Case Reports

Denzil Lush, Master of the Court of Protection, summarises two recent decisions which explore the question of suitability to act as an attorney under an Enduring Power of Attorney

One of the grounds on which the Court of Protection will refuse to register an enduring power of attorney, or will cancel registration and revoke a power, is "on being satisfied that, having regard to all the circumstances and in particular the attorney's relationship to or connection with the donor, the attorney is unsuitable to be the donor's attorney": Enduring Powers of Attorney Act 1985, sections 6(5)(e) and 8(4)(g).

The origin of these provisions can be found in the Law Commission's report, The Incapacitated Principal, published in July 1983. On page 30 the Commission said:

"The question should be whether the particular attorney is suitable to act as attorney for the particular donor. In short, the Court should examine carefully all the circumstances - particularly the relationship between the donor and the attorney."

The two decisions summarised below illustrate how subjective and wide-ranging the concept of unsuitability is. They are extreme, almost bizarre, contrasts and demonstrate that the Court's paramount concern is to advance or promote the best interests of the individual donor.

Re T (94510587)

Mrs T is 80 and suffers from a degenerative brain disease. Five years ago she began physically assaulting her husband. The family decided that it would be better for both of them if they were to separate. Mr T remained in the Midlands with their elder son, and suitable accommodation was found for Mrs T in Lancashire, where their younger son, J, a social worker, lived.

In March 1993 she appointed J to be her sole attorney. He applied to register the power in February 1994 and it was registered five weeks later.

In July 1997 the Court learnt that J was serving a prison sentence for child abuse. The Court made enquiries as to whether in practical, rather than moral, terms he was suitable to remain as his mother's attorney. In reply to these enquiries he wrote:

"Upon my imprisonment it was discussed among the family whether I (through the enduring power of attorney) or my brother would be in a better position to deal with my mother's affairs. It was felt that due to my brother's employment keeping him in remote parts of the world for large periods of time, he would be more inaccessible than myself. Therefore, it was decided that, as it was in the best interests of my mother that control of her affairs should remain within the confines of the immediate family, I should retain control through the existing power of attorney with certain additional provisions put in place.

These additional provisions are:

1. All day-to-day expenses should be paid by direct debit or standing order through my mother's account with Lloyds Bank.

2. All income should be paid directly into the same account.

3. My address for all correspondence should be changed to my brother's address.

4. All correspondence would be checked by my brother's wife, who would prepare any cheques or correspondence ready for signature.

5. I would telephone either my brother or his wife twice a week and pass on instructions.

6. My sister-in-law would send cheques and correspondence to me for signature no later than one week after receipt.

7. I would sign such documents and return them to my sister-in-law, who would send them to the appropriate organisation.

My brother's wife is qualified in accountancy and is trusted implicitly by the family. However, she would be unwilling to take the responsibility for the administration of my mother's affairs by acting as a receiver."

Having regard to all the circumstances, I was satisfied that - for the time being, at least - this particular attorney is not unsuitable to be the attorney for this particular donor, and that the donor's best interests would not actually be advanced or promoted in any way if the power were to be revoked.

Mrs T lives in a nursing home where she is comfortable, contented, and well cared for. Her estate is fairly small. Its administration is neither complicated nor onerous. The current arrangements implemented by the attorney have been carefully thought out and are working satisfactorily. The donor's present wishes, values and beliefs, as far as they are ascertainable, are that J should continue to look after her financial affairs, even though he is in prison. The rest of the family are supportive of both the donor and the attorney, and the imposition of a receivership (which, in this case, would involve appointing someone outside the family) would be unnecessarily intrusive and restrictive of their freedom of action, and would curtail Mrs T's ability to be involved in the process of making decisions about her accommodation and financial affairs. On balance, there is less harm to the donor in preserving the status quo than in upsetting it.

For the first time the name of a donor of an enduring power of attorney was placed on the Lord Chancellor's General Visitors' permanent list. This will enable the Court to monitor the effectiveness of the arrangements for managing the donor's financial affairs, and to provide any support or back-up, if need be.

Re C (50060736)

C is 83, a knight, a former industrialist, and a multi-millionaire. He has Alzheimer's Disease.

In September 1994 he appointed a solicitor and a close friend, who has been the High Sheriff of their county, jointly and severally to be his attorneys. It was a sensible choice at the time. One would be hard put to find two more respectable, reliable and competent attorneys.

In January 1997 the attorneys applied to register the power. They handled the application rather insensitively. C's wife had just died, and it must have seemed as though he had lost everything: his wife; his health; and his ability to manage his own affairs. There was even talk of a new care regime which would involve dismissing his carer-cum-secretary who has been with him for the last five years.

C tried to revoke the power and objected to its registration on the ground, inter alia, that the attorneys were unsuitable. In February his solicitors (a different firm from the solicitor/attorney's) obtained an opinion from a consultant psychiatrist, who concluded:

"(His) patchy intellectual deterioration, which is likely to progress with uncertain speed, makes it impossible for me to support the Deed of Revocation. ... For whatever reason, he and the present holders of the power of attorney appear at irreconcilable odds. In the circumstances (his) affairs should be in independent hands. To have them in the hands of those in whom he lacks confidence can only be harmful to his mental wellbeing."

In May they obtained a second opinion from a consultant psychogeriatrician, who said much the same thing:

"(He) clearly views his present attorneys as unsuitable, particularly (the solicitor), and this view does not appear to arise out of mental illness. ... Since (he) is quite clear in his preference for either (his new solicitor) or (his accountant), or both, to act as his receiver, it would be in the best interests of his continuing mental health for his wishes to be followed."

There was an all-day hearing on 2 July. Counsel appeared for C, the attorneys, and C's daughters, who supported the application to register the power. There was insufficient time for the barristers to make their closing speeches, and it was agreed that they would send their written submissions to me by 31 July.

On 17 July C, who had not attended the hearing, came to see me at his own request. He said he wanted to meet the man who was going to make the decision which would affect his future life and happiness.

The Master of the Court of Protection has the same visiting rights as the Lord Chancellor's Visitors, and is entitled to interview a patient or donor in private: Mental Health Act 1983, s.103(7); Enduring Powers of Attorney Act 1985, s.10(1)(a). However, for reasons of procedural fairness, I chose to see him in the presence of a member of the Public Trust Office's EPA team.

Our meeting lasted an hour and a quarter. The consistent theme throughout was that he had lost confidence in his attorneys; he no longer regarded them as friends; he thought they were acting for his daughters, rather than for him; their continued involvement was distressing him; and he wanted his solicitor and accountant to be his receivers instead. I was satisfied that he was expressing his own wishes and feelings and was not repeating some previously rehearsed response.

Central to the debate was a quotation from Theobald's The Law Relating to Lunacy (1924). Sir Henry Theobald was Master in Lunacy from 1907 to 1922. On his retirement wrote this magnum opus which drew on his experience in managing patients' affairs. On page 398 he said:

"A difficult question arises where a receiver, otherwise unobjectionable, is proposed, and the lunatic expresses a strong dislike to him. This dislike may be irrational and based upon hallucination. At the same time it is, as a rule, unwise to appoint such a person, as the appointment may have a bad effect upon the lunatic's mental and bodily condition and retard his recovery."

Counsel for C's daughters submitted that:

"This passage was written before the introduction of enduring powers of attorney, and is dealing with the choice of receivers. The force of the argument is considerably diluted if it is applied to attorneys, who, ex hypothesi, represent the donor's own choice when he was of sound mind."

Counsel for C himself quoted the Law Commission's report on Mental Incapacity (1995), page 45:

"Realistically, the former views of a person who is without capacity cannot in every case be determinative of the decision which is now to be made. Past wishes and feelings may in any event conflict with feelings the person is still able to express in spite of incapacity. People who cannot make decisions can still experience pleasure and distress. Present wishes and feelings must therefore be taken into account, where necessary balanced with past wishes and feelings."

There is little, if any, doubt that the level and form of intervention in managing the property and financial affairs of someone with impaired decision-making capacity should reflect that individual's wishes to the maximum possible extent. This is in keeping with the individual's rights to autonomy and self-determination.

The attorneys' involvement was making C unhappy. Their continued intervention would continue to make him unhappy. This unhappiness could result in depression, and, indeed, was already having that effect.

Depression is itself a mental disorder (ICD10.F32). The symptoms are well known. Lowered mood. Loss of interest and enjoyment. Reduced concentration and attention. Disturbed sleep. Diminished appetite. Reduced energy leading to increased fatiguability and diminished activity. Reduced self-esteem and self-confidence. Ideas of guilt and unworthiness. Bleak and pessimistic views of the future. Even ideas or acts of self-harm. The possibility that C's physical and mental health could be affected in this way was not a risk I was prepared to take.

In some ways Sir Henry Theobald's comments apply a fortiori to attorneys acting under an enduring power. The appointment of a receiver is a decision which is contemporaneous with the loss of capacity. The appointment of an attorney is not, and circumstances and relationships may have changed considerably since the donor originally appointed his attorneys.

Secondly, a receiver's actions are closely monitored by the Court of Protection and the Public Trust Office, who are likely to sense any breakdown in the relationship between a patient and receiver. Unless it were specifically brought to their attention, they would be oblivious to any breakdown in the relationship between the donor and attorneys once an enduring power had been registered.

Accordingly, I decided that it was in C's best interests that registration of the power be refused on the grounds of the attorneys' unsuitability; that the power be revoked; and that his accountant and new solicitor be appointed joint receivers.

Denzil Lush, Master, The Court of Protection, Stewart House, 24 Kingsway, London, WC2B 6JX, DX 37965 Kingsway